EEQ v Commissioner of Police

[2020] NSWCATAD 253

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EEQ v Commissioner of Police [2020] NSWCATAD 253

Hearing dates:

On the papers

Date of orders:

19 October 2020

Decision date:

19 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Privacy - information protection principle - personal information - jurisdiction

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Privacy and Personal Information Protection Act 1998

Police Act 1990

Law Enforcement (Controlled Operations) Act 1997

Cases Cited:

AA & Ors v Department of Family and Community Services [2016] NSWSC 842

AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91

BVU v Commissioner of Police, NSW Police Force [2016] NSWCATAD 75.

Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78

HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EEQ (Applicant)
Commissioner of Police (Respondent)

Representation:

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

File Number(s):

2020/00040678

Publication restriction:

Nil

Reasons for Decision

Introduction

1. In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as EEQ.

2. The Applicant made a request under the Privacy and Personal Information Protection Act 1998 (“the PPIP Act”) that the Respondent delete or amend information stored in the Respondent’s Computerised Operational Policing System database (“COPS”). It appears that the Applicant relied on section 15 of the PPIP Act in relation to that request. She contends that the records are inaccurate, discriminating and contain misleading information and she requested the removal of 'mental health allegations and incorrect information'.

3. Her concern is that the Respondent’s records contain inaccurate information about her mental health and other inaccurate information about her. She says that there is no evidence to suggest the information in the reports is accurate and/or correct and that this has had a detrimental effect on her life.

4. The Respondent refused to make the requested amendment. The Respondent’s refusal was based on the view that it was not required to do so because of the operation of section 27 of the PPIP Act. That decision was affirmed on an internal review.

5. EEQ has applied to the Tribunal for external review of the Respondent’s decision.

6. She seeks an order that the Respondent remove all information held in its reports that refer to her mental health. She also seeks compensation.

7. The Respondent relies on section 6(3)(a) of the Police Act 1990 in support of its submission that the decision not to amend a COPS Event record, is not an administrative or educative function of the agency

Applicable legislation

8. The PPIP Act contains Information Protection Principles (“IPPs”) which provide safeguards and privacy standards for the collection, storage, access, use and disclosure of health and personal information held about individuals by NSW government agencies.

9. Section 4 of the PPIP Act provides a definition of the term “personal information” as follows:

4 Definition of “personal information”

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.

3. Personal information does not include any of the following—

   (a)   information about an individual who has been dead for more than 30 years,

   (b)   information about an individual that is contained in a publicly available publication,

   (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act,

   (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth,

   (e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure,

   (f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997,

   (g)   information about an individual arising out of a Royal Commission or Special Commission of Inquiry,

   (h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990,

   (i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009,

   (j)   information or an opinion about an individual’s suitability for appointment or employment as a public sector official,

   (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000,

   (k)   information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection.

4. 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.

5. 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.

   10. It appears from the Applicant’s submissions that she may be asserting that the information that is the subject of her application is not “personal information” for the purposes of the PPIP Act because of the exception found in section 4(f) of the PPIP Act.

   11. If that is the case, the PPIP Act does not apply and the Tribunal will not have jurisdiction to deal with the application.

Applicable legislation

12. Section 15 of the PPIP Act enables a person to make an application to amend personal information about them that is held by an agency in certain circumstances; namely in the event the information is not accurate, not relevant, not up to date, not complete or is misleading.

13. Sections 15 of the PPIP Act provide:

15 Alteration of personal information

1. A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information—

   (a)   is accurate, and

   (b)   having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

2. If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

3. If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.

4. This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998.

5. The Privacy Commissioner’s guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with.

6. In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister’s personal staff.

   14. In AA & Ors v Department of Family and Community Services [2016] NSWSC 842 (‘AA’) Slattery J provided the following overview of the operation of section 15 of the PPIP Act at paragraphs [191] – [198]:

7. The PPIP Act sets out a comprehensive procedure for the review of allegedly inaccurate information held on the files of government agencies in this State. Here is not the place to set out in full an explanation of the PPIP Act jurisdiction. But its essential features are relevant and may be shortly noted.

8. Under PPIP Act, s 15 a public sector agency, as defined within the legislation, that holds personal information about an individual must at the request of that individual make appropriate amendments to the personal information to ensure that it is accurate and that having regard to the purpose for which the information was collected or is to be used that information is relevant, up-to-date, complete and not misleading: PPIP Act, s 15(1). The statutory definition of “public sector agency” in the PPIP Act, s 3 appears to be wide enough to embrace the operations of Community Services. Community Services did not contend otherwise.

9. PPIP Act, s 15(2) sets up a procedure that if the public sector agency is not prepared to amend personal information in accordance with a request by the individual to which the information relates, then the agency must, if so requested, take such steps as are reasonable to attach to the file information and in such a manner as is capable of being read with the file information, “any statement provided by the individual of the amendments sought”.

10. And PPIP Act, s 15(3) provides that if personal information is amended in accordance with the section that the individual affected by the amendment “if it is reasonably practicable” is entitled to have recipients of that information notified of the amendments made by the public sector agency.

11. PPIP Act provides a very useful procedure. It sets up a process in which a complainant about the content of public sector agency information is required to draft an amendment to the information on file, so that the agency will be in a position to consider the precise changes the complainant wants to what is recorded. This is a simple and useful measure to make sure that the differences between the complainant and the relevant government agency are adequately defined at the outset. And even before that point is reached, the Department has to be asked in a non-adversarial atmosphere whether it accepts the amendments being proposed or declines them. One of the difficulties of the present case is that before the plaintiffs sought the relief that they now do about changing the content of the Department’s files they did not go through the kind of discipline that PPIP Act, s 15 requires.

12. Another advantage of using the PPIP Act, s 15 rights of request is that even if the public sector agency does refuse to amend its own records, it may nevertheless be required to place on its own files, if reasonable, any statement provided by the individual of the amendments sought. Thus the Department’s own file may end up having on it information which appears to be contested. The legislation appears to accept that the PPIP Act, s 15 process may not lead to complete resolution of what is the correct factual position but may mean that the Department ends up with a hybrid file, where its own information is qualified by a statement, placed on file under PPIP Act, s 15, containing other information from the person affected.

13. If an individual is dissatisfied with the response of a public sector agency under PPIP Act, s 15, the individual has remedies under PPIP Act, Part 5. The person aggrieved by the conduct of a public sector agency is entitled to a review of that conduct, which in the first instance will be undertaken by the public sector agency concerned: PPIP Act, s 53(1) and (2). But the application for review must be in writing and must consider relevant material submitted by the applicant and the Privacy Commissioner. From a completed review the public sector agency can take a variety of actions and including no further action, a formal apology, appropriate remedial action including monetary compensation, undertakings not to repeat the conduct and the implementation of administrative measures to ensure the conduct will not occur again: PPIP Act, s 53(7). The Privacy Commissioner has an oversight role in the management of applications for internal review under PPIP Act, s 53: PPIP Act, s 54.

14. A person who has made a PPIP Act, s 53 application who is not satisfied with the findings or the action taken by the public sector agency may apply for administrative review to the Civil and Administrative Tribunal: PPIP Act, s 55.

    15. In response to EEQ’s request the Respondent relies on section 27 of the PPIP Act and asserts that the section provides the Respondent with an exemption from the operation of the IPPs except when it is exercising its administrative or educative functions. It also contends that this exemption applies to the "amendment principle" outlined in section 15 the PPIP Act.

    16. Section 27 the PPIP Act provides:

27 Specific exemptions (ICAC, ICAC Inspector and Inspector’s staff, NSW Police Force, LECC, Inspector of LECC and Inspector’s staff and NSW Crime Commission)

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.

   17. A comparable provision is found in section 17 of the Health Records And Information Privacy Act 2002 which states:

17 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, NSW Police Force, LECC, Inspector of LECC and Inspector's staff and NSW Crime Commission)

This Act does not 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 Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission and the New South Wales Crime Commission, except in connection with the exercise of their administrative and educative functions.

18. Section 6 of the Police Act 1990 provides:

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.

1. 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.

   19. The Respondent contends that the investigation of a possible contravention of the law and the detection of crime is a core function of the NSW Police Force. The creation of COPS Event record is part of that function and it is not an administrative or educative function.

   20. This gives rise to a question of whether the Tribunal has jurisdiction to deal with the application.

   21. Section 55 of the PPIP Act provides:

55 Administrative review of conduct by Tribunal

1. If a person who has made an application for internal review under section 53 is not satisfied with—

   (a)   the findings of the review, or

   (b)   the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

(1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister’s personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct.

1. 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.

2. Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

3. The Tribunal may make an order under subsection (2) (a) only if—

   (a)   the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

   (b)   the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(4A)   The Tribunal may not make an order under subsection (2) (a) if—

(a)   the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b)   the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c)   the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

1. …

Issues for determination

22. For determination in this matter is whether the Respondent is exempt from compliance with the PPIP Act in the circumstances of this matter; whether the Tribunal has jurisdiction to determine the matter; and what, if any, orders the Tribunal should make.

Material before the Tribunal

23. Each of the parties has provided written submission in regard to the application.

24. The Applicant’s position is unclear. She submits that that the Tribunal does have Jurisdiction to determine the application and appears to be seeking a finding regarding whether the Information in issue falls within the definition of the personal information or is captured by section 4(3)(f) of the PPIP Act.

25. She appears to be asking the Tribunal to reconsider whether the Respondent is lawfully exempt from compliance with section 15 of the PPIP Act by the application of section 27 of the PPIP Act. This will require a consideration of whether or not the Information in issue is in fact “personal information” or is within the scope of section 4(3)(f) of the PPIP Act. As noted, section 4(3)(f) provides that ‘personal information’ does not include “information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997”.

26. She appears to contend that if the Information in issue is not “personal information” then the Respondent is not exempt from amending the information.

27. The Applicant points to the definition of "controlled operation" in section 3 of the Law Enforcement (Controlled Operations) Act 1997 as:

controlled operation means an operation conducted for the purpose of—

(a)   obtaining evidence of criminal activity or corrupt conduct, or

(b)   arresting any person involved in criminal activity or corrupt conduct, or

(c)   frustrating criminal activity or corrupt conduct, or

(d)   carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c),

being an operation that involves, or may involve, a controlled activity.

28. Section 3 of the Law Enforcement (Controlled Operations) Act 1997 defines “controlled activity” as:

controlled activity means an activity that, but for section 16, would be unlawful.

29. She appears to contend that because of the application of section 3 of the Law Enforcement (Controlled Operations) 1997 (NSW) the Respondent is not exempt from amending the information. However, if the Tribunal finds that it does not have jurisdiction to determine the matter she requested an “order for the matter to be transferred to the District Courts of appeal or the correct jurisdiction for efficient and effective procedural fairness and without prejudice to have the information the Applicant seeks to deleted, corrected and amended.”

30. The Respondent notes that the contents of the Applicant's records relate to domestic violence matters involving the Applicant and a charge for maliciously destroy or damage property for which the Applicant was the accused. The Respondent submits that the investigation of a possible contravention of the law and the detection of crime is a core function of the NSW Police Force under section 6(3)(a) of the Police Act. It contends that the creation of the COPS Event record as part of that function, and the decision of the Respondent agency by its internal review decision not to amend that COPS Event record, is not an administrative (or educative) function of the agency.

31. The Respondent seeks an order that the conduct of the Respondent is exempt from the IPPs because of section 27 of the PPIP Act (and section 17 of the HRIP Act).

32. Alternatively, if the Applicant's information is found to be information arising out of, or in connection with, a "controlled operation" within the meaning of section 3 of the Law Enforcement (Controlled Operations) Act 1977 (NSW), then the application for review should be dismissed on the basis that the Tribunal does not have jurisdiction to hear the matter. The Respondent relies on section 4(3)(f) in support of that submission.

Discussion

33. In EG v Commissioner of Police, NSW Police Service [2003] NSWADT 150 the Tribunal has suggested that since the PPIP Act is beneficial legislation, the definition of personal information should be interpreted broadly and the exclusions from the definition of personal information should be construed narrowly. I agree with that view. In the circumstances of this matter I am satisfied that the information in issue is ‘personal information’ for the purposes of the PPIP Act.

34. However, the Respondent contends that it is exempt from compliance with section 15 of the PPIP Act. It is therefore necessary to consider whether or not the information in issue is held in connection with the exercise of the Respondent’s administrative or educative functions.

35. In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 the President of the Administrative Decisions Tribunal stated at paragraphs [27] - [31]:

1. 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)). 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.

2. 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.

3. 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 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 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.

4. 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.)

5. 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.

   36. This was endorsed by the Administrative Decisions Tribunal Appeal Panel in Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 where it stated at paragraph [20]:

6. 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).

   37. The Tribunal has specifically dealt with the question of whether the section 27 exemption applies to COPS entries.

   38. In AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91 Judicial Member Molony adopted the views of the Appeal Panel in Commissioner of Police, New South Wales Police Force v YK (GD) at paragraph [15] and stated at paragraphs [16] – [18]:

7. 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.

8. 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.

9. 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.

   39. I adopted a similar view in BVU v Commissioner of Police, NSW Police Force [2016] NSWCATAD 75.

   40. In my view, that is the correct approach.

   41. I agree with the Respondent that the exemption provided by section 27 of the PPIP Act applies to the COPS event. In my view, as a consequence of the application of section 27, the Respondent is exempted from the operation of section 15 of the PPIP Act in regard to this information.

   42. It follows that the Tribunal has no jurisdiction to consider the matter. As a result EEQ's application must be dismissed.

Orders

1. The application is dismissed.

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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: 19 October 2020