Commissioner of Police, New South Wales Police Force v YK (GD)

[2008] NSWADTAP 78

Appeal Panel - Internal

CITATION:	Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police Force RESPONDENT YK
FILE NUMBER:	089032
HEARING DATES:	31 July 2008
SUBMISSIONS CLOSED:	31 July 2008
DATE OF DECISION:	27 November 2008
BEFORE:	O'Connor K - DCJ (President); Handley R - Deputy President; Blake C - Non-Judicial Member
CATCHWORDS:	Privacy and Personal Information Protection Act 1998 - s 27 - Agency Exemption - Interpretation - Meaning of "Administrative Services"
DECISION UNDER APPEAL:	YK v Commissioner of Police, New South Wales Police [2008] NSWADT 81
FILE NUMBER UNDER APPEAL:	063356
DATE OF DECISION UNDER APPEAL:	03/13/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Essential Services Act 1988 Freedom of Information Act 1989 Law Enforcement (Powers and Responsibilities) Act 2002 Ombudsman Act 1974 Police Act 1990 Police Act 2000 Privacy and Personal Information Protection Act 1998 State Emergency and Rescue Management Act 1989
CASES CITED:	HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 The Ombudsman v Laughton [2005] NSWCA 339 YK v Commissioner of Police, NSW Police Force [2008] NSWADT 81
REPRESENTATION:	APPELLANT S Free, counsel / Crown Solicitor's Office RESPONDENT P Lowson, counsel / Rice More and Gibson
ORDERS:	1. Appeal allowed. 2. Leave granted to extend appeal to merits. 3. Application for review dismissed.

1 This appeal relates to the scope of the exclusion from the operation of the Privacy and Personal Information Protection Act 1998 (Privacy Act) effected by s 27 of the Act, as it relates to the functions of the NSW Police Force. Section 27 provides (emphasis added):

‘ 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.’

2 In YK v Commissioner of Police, NSW Police Force [2008] NSWADT 81 the Tribunal ruled that the conduct placed in issue by the review applicant was conduct in relation to which the NSW Police Force was obliged to comply with the information protection principles set out in the Act because it involved the exercise of administrative functions. The Commissioner of Police has appealed. The appeal is an interlocutory one, in that the Tribunal has yet to proceed to deal with the substantive complaint.

3 Though the Appeal Panel can be constituted by a single presidential member to deal with an appeal on an interlocutory matter on this occasion, a full panel was constituted. The question raised is an important one, it raises reasonably arguable issues, and leave is granted under s 113(2B) of the Administrative Decisions Tribunal Act 1997 (ADT Act) for the appeal to proceed.

4 The circumstances giving rise to the question of whether conduct put in issue falls under s 27(1) or s 27(2) are set out at [5] to [15] of the Tribunal’s reasons. A summary follows.

5 Early in 2002 a person, ‘A’, complained to the Police that ‘YK’ had sexually assaulted him when a child. He said that YK had done the same to others. The Police officer took A to a sexual assault counsellor. The counsellor, on becoming aware that YK worked at a NSW hospital, reported the allegation as required by law to NSW Health. After this point there were a number of exchanges of information between the Police and NSW Health. The Police undertook an investigation including interviewing YK and collecting statements from possible victims and witnesses. In December 2003 NSW Health sought Police assistance in its decision to conduct a ‘risk assessment’ of YK’s employment status. In March 2004 NSW Police advised NSW Health that there was insufficient evidence to charge YK, and that it was not able to provide NSW Health with information that might help it contact and interview the informants.

6 Nonetheless the Police Force subsequently decided to provide NSW Health with a copy of the Police Brief and Evidence. This is the conduct placed in issue.

7 The material text of the Police covering letter dated 1 May 2004 is set out at para [12]. It is expressed in a way which suggests that the author regarded the disclosure as governed by the Privacy Act, and that the author was satisfied that it was lawful because it fell within one of the exceptions to the information protection principle that prohibits disclosure of personal information. The letter also insisted that the information only be used for the purpose for which it had been supplied (i.e. to assist the Department in the performance of its investigative functions and the requirements of public safety and protection that fall on the Department). YK became aware of the disclosure of the Police Brief and Evidence when he was called by NSW Health for interview in May 2005. YK then applied under the Privacy Act to the NSW Police for review of the conduct.

8 The Police Force submitted to the Tribunal that the disclosure was exempt, and did not belong to the ‘administrative’ or ‘educative’ functions aspect of its operations. The functions of the Police Force are set out in s 6 of the Police Act 1990, 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.

(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

9 The Police Force submitted that the disclosure fell within the function of ‘the protection of persons from injury’.

10 In reply YK contended that the disclosure was not connected with police work such as the investigation of crime (as the criminal investigation had been closed). Its only justification was to assist NSW Health in an employment matter. The disclosure was, therefore, an ‘administrative’ one.

11 The Tribunal agreed with YK’s submission. It concluded its discussion of relevant cases and the issue at [37], as follows:

‘37 In my opinion, having regard to the relevant provisions of the Police Act 1990, section 27 of the PPIP Act and the circumstances in which the disclosure was made, the disclosure was made pursuant to the NSW Police ‘administrative’ functions. That is, the circumstances of disclosure are similar to that mentioned in HW , where the NSW Police provide[d] details of a person’s criminal record to an agency. In this application the disclosure was only made following a request of NSW Health and then only after the NSW Police had completed its investigation. That is, in this application at the conclusion of its core responsibilities in regard to the allegations made by ‘A’. Hence the question remains whether the disclosure was one that was otherwise authorised under the provisions of the PPIP Act.’

12 The use of ‘core’/‘non-core’ as a way of determining which of the Police Force’s responsibilities fall under s 27(1) and which fall under s 27(2) flows from an observation made by the President sitting at first instance in HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 at [28]. It is helpful to an understanding of that observation to set out the whole of [27] to [30].

13 The conduct in issue in that case was found to fall within s 27(1) and be immune. There a solicitor belonging to the prosecution team had asked a Police officer in the course of a trial to obtain from certain regulatory bodies information they held about the accused, a medical practitioner. The officer used invalid process to get the information. The question was whether there had been an unlawful collection of personal information contravening the information protection principles.

14 The President said:

‘27 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 (as I considered to be the case in relation to the way that expression applies to the Police Service in the setting of the amendment of personal record provisions in the Freedom of Information Act 1989: see N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (subject to appeal)). [The Police appeal was dismissed.] 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 [be] 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 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.)’

15 The Police submission is that the reference to ‘core’ responsibilities is unhelpful. In its submissions in support of its appeal, the Police indicated their agreement with the statement in the first sentence of para [30] referring to such activities as personnel, information technology and budget belonging to the ‘administrative services’ area.

16 In the present case, the Tribunal said:

‘26 In my opinion, the essential issue as to whether the disclosure in this application fell within the ‘core’ responsibilities of the NSW Police, is ultimately a question of fact having regard to the circumstances in which the disclosure was made.

27 What is clear from the terms of the 1 May 2004 letter from the NSW Police to the ES&RB of NSW Health is that the information was provided so as to assist the ES&RB in its investigations of the allegations. Unlike the NSW Police investigation, the ES&RB were not seeking to establish whether there was evidence on which to charge YK with an offence, its investigation was for the purpose of conducting a ‘risk assessment’ in regard to YK’s employment. That risk assessment being based on the same allegations on which the NSW Police investigation was based. However, the fact that the underlying allegations are the same does not mean that the provision of the statements of the NSW Police investigation also arose from that investigation.

28 There is no question that the NSW Police investigation fell within the core responsibilities of the Police. However, there is no provision in the Police Act 2000, or the Ombudsman Act 1974 requiring NSW Police to report allegations of criminal conduct made against a government employee, to the person’s employer or the Ombudsman. Nor is there a requirement to inform the Ombudsman or the agency of the outcome of any investigation. Yet in regard to allegations of child sexual misconduct by an employee of nominated agencies (example NSW Health), these agencies are required to report these allegations to the Ombudsman under section 25C of the Ombudsman Act 1974. That section is contained in Part 3A of the Ombudsman Act 1974, the purpose of which is to provide for child protection and to ensure that allegations are investigated appropriately either by the Ombudsman or the relevant agency and that findings in regard to such investigations are acted upon in the appropriate way. These provisions do not apply to allegations that are made to the NSW Police. The reasons for this may be obvious as NSW Police have express powers and functions to investigate these allegations and to prosecute if an allegation can be proved to the criminal standard of proof …’

17 In our view, the Tribunal erred in depicting the question of whether a ‘core’/‘non-core’ distinction provides the basis for analysis. We agree with the Police submission that the Tribunal in para [26] mischaracterised the question. The President was using, as we see it, ‘core’ as an aid to understanding the generality of the policing functions of the Police Force. The term was not being used to prescribe a legal test.

18 In this case the conduct in issue was seen as relevant to law enforcement. There was nervousness on the part of the Police, as we read the material, about dealing with NSW Health in the way that it did. Initially it had declined to assist once it found that there was insufficient evidence to lay charges against YK. Later it changed it mind, but then conveyed the information sought under strict conditions as to any further use or republication.

19 The Tribunal felt that the prevention of crime function and the protection of persons from injury function ought not be construed so as to permit a disclosure of the type that occurred in this case. In our view this is not the correct approach.

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).

21 In any event, we are inclined to the view that the conduct can reasonably be seen as belonging to one or more of the community protection functions of the Police Force. The requirements falling on NSW Health in respect of ensuring that their employees do not present a risk to those in their care, reasonably connect, as we see it, with the Police Force’s function to which reference was made in the submissions – ‘protection of persons from injury’.

22 In October 2008, while this decision was reserved, the Appeal Panel’s attention was drawn by counsel for the respondent to a Court of Appeal decision, The Ombudsman v Laughton [2005] NSWCA 339. In that case the Court held that the Ombudsman’s immunity under the Ombudsman Act 1974, s 35A from civil suit for actions done when ‘executing’ his responsibilities under the Act was limited to activities relating to the execution of his substantive responsibilities. It did not extend to immunity from external review of conduct connected with the internal administration of his office, such as an employee appeal against an employment decision.

23 The Crown Solicitor, for the appellant, disputed the relevance of that case to the present question. While the Court was there dealing with a dichotomy similar to the one under consideration in this case, there is nothing in that decision which causes us to reconsider the views expressed above. What assistance may be gleaned from the case tends, we think, to support the conclusion we have reached: see, for example, per Spigelman CJ at [25] – the words – ‘executing [an] Act’ – ‘may not encompass matters of internal administration, such as employment of staff’.

24 There are no factual issues. Accordingly, we grant the Police Force’s application to extend the appeal to the merits, and make final orders in line with our interpretation.

Orders

1. Appeal allowed.

2. Leave granted to extend appeal to merits.

3. Application for review dismissed.