EG v Commissioner of Police, NSW Police Service

[2003] NSWADT 150

CITATION:	EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150
DIVISION:	General Division
PARTIES:	APPLICANT EG RESPONDENT C Capper, advocate OFFICE OF THE PRIVACY COMMISSIONER Dr J Gaudin, legal officer
FILE NUMBER:	023308
HEARING DATES:	25/03/2003
SUBMISSIONS CLOSED:	03/25/2003
DATE OF DECISION:	06/24/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Privacy - information protection principle - disclosure to third party
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Police Service Act 1990 Privacy & Personal Information Protection Act 1998 Privacy and Personal Information Protection Regulation 2000
CASES CITED:	Y v Director General, Department of Education & Training [2001] NSWADT 149 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
REPRESENTATION:	APPLICANT In person RESPONDENT C Capper, advocate OFFICE OF THE PRIVACY COMMISSIONER Dr J Gaudin, legal officer
ORDERS:	1. The information in the first paragraph of the undated letter from the agency to the Legal Practitioners Admission Board is "personal information" within the meaning of that term in s 4 of the Privacy and Personal Information Protection Act 1998. ; 2. The information in the second paragraph of the undated letter from the agency to the Legal Practitioners Admission Board is not "personal information" within the meaning of that term in s 4 of the Privacy and Personal Information Protection Act 1998. Consequently the Tribunal has no jurisdiction to review the agency’s conduct in disclosing that information.; 3. The information in the third paragraph of the undated letter from the agency to the Legal Practitioners Admission Board is "personal information" within the meaning of that term in s 4 of the Privacy and Personal Information Protection Act 1998. ; 4. Registry to re-list the matter for a further planning meeting on a date to be fixed in consultation with the Tribunal, the parties and the Privacy Commissioner.

Introduction

Background

1 Mr EG, the applicant in these proceedings, is currently a police officer who became aware through a request under the Freedom of Information Act 1989 that the Commissioner of Police, New South Wales Police Service (the agency) had sent an undated letter relating to him to the Legal Practitioners Admission Board (LPAB). In an application under the Privacy and Personal Information Protection Act 1998 (PPIP Act) dated 23 October 2002, Mr EG requested an internal review of the agency’s conduct in supplying the information in the letter to the LPAB. The text of the letter the agency sent to the LPAB is as follows:

Dear Sir
Application by [the applicant] for admission to the Legal Profession
I am aware that [the applicant] is in the process of completing his final pre-admission studies at the College of Law and intends seeking as a solicitor sometime later this year.

[The applicant] is a police officer currently under suspension.

There are several issues which I believe would impact on the assessment of whether he is a person of good fame and character. I though it appropriate to flag this with you.

Yours faithfully

Michael Holmes

Solicitor for the Police Service (emphasis in original).

2 In response to the application for an internal review the agency decided on 19 December 2002, to take no further action on the basis that the information disclosed in the letter was not personal information. Enclosed with the internal review were two newspaper articles from the Daily Telegraph dated 22 June 2001 and 15 August 2001, which refer to the applicant. The relevant part of the first article reads: “A decorated police officer, suspended for almost a year after complaints were made against him claims he is being punished for doing his job properly.” The article goes on to state that “[The applicant] was suspended from duty on June 30 last year because of a “lack of confidence” in him . . . ” The second article states, in part, that: “[the applicant] is on suspension with full pay after being threatened by (three members of the public). . .”

3 On 23 December 2002, the applicant filed an application with the Tribunal under s 55 of the PIPP Act for a review of the conduct of the agency. The applicant alleges that the agency has disclosed personal information in contravention of certain Information Protection Principles (IPPs) set out in Part 2 of the PIPP Act. Following a planning meeting, the parties agreed that the Tribunal should determine the preliminary question of whether any of the information disclosed by the agency is “personal information” as defined in s 4 of the PIPP Act. If the information is not “personal information”, then the agency will not have breached any relevant provision of the PIPP Act and the Tribunal will have no jurisdiction to review the agency’s conduct.

Relevant legislative provisions

4 Conduct that is reviewable by the agency, and subsequently by the Tribunal, is defined in s 52 of the PPIP Act:

(1) This Part applies to the following conduct:
(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.

(3) This Part does not apply to any conduct that occurred before the commencement of this Part.

(4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.

5 The Tribunal has jurisdiction to hear this matter pursuant to s 38 of the Administrative Decisions Tribunal Act (the ADT Act) and s 55 of the PIPP Act.

6 As required by s 55(6) of the PIPP Act, the Tribunal notified the Privacy Commissioner of the application. The Privacy Commissioner exercised his right of appearance.

7 The parties have agreed that the Tribunal should deal with the preliminary matter pursuant to section 76 of the ADT Act. This means that the matter is determined “on the papers” without an oral hearing, following the receipt of written submissions from the parties and the Privacy Commissioner.

Statutory definition of personal information

8 Personal information is defined in s 4(1) of the PPIP Act. The relevant exclusions relied on by the agency are contained in s 4(3)(b)(h) and (j).

(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)…

(3) Personal information does not include any of the following:

(a)…

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

. . .

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

. . .

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

9 “Publicly available publication” is defined in s 3 of the PIPP Act as not including “any publication or document declared by the regulations not to be a publicly available document for the purposes of this Act.” There are no publications or documents declared by the Privacy and Personal Information Protection Regulation 2000 not to be a publicly available publication.

Submissions in relation to the first paragraph

10 The first paragraph of the letter states that:

I am aware that [the applicant] is in the process of completing his final pre-admission studies at the College of Law and intends seeking admission as a solicitor sometime later this year.
11 The applicant submitted to the Tribunal that the first paragraph of the letter discloses personal information about him, and that this is not information in a publicly available publication. The agency did not make submissions on this point presumably because they interpreted Mr EG’s application as being restricted to the second and third paragraphs of the letter. Despite the fact that Mr EG only referred to those paragraphs in his application to the Tribunal, the Tribunal has jurisdiction under s 55(1) of the PPIP Act, to review “the conduct that was the subject of the application under section 53.” That conduct is the disclosure of the information in the letter to the LPAB.

Decision in relation to the first paragraph

12 The information in the first paragraph is information about the applicant. His identity is apparent from the letter. That information is not contained in a publicly available publication that was brought to the Tribunal’s attention. None of the other exemptions in s 4 apply to this information and I find that it is “personal information” within the meaning of that term in s 4 of the PPIP Act.

Submissions in relation to the second paragraph

13 The second paragraph of the letter states that:

[The applicant] is a police officer currently under suspension.
14 The agency submitted that the information disclosed in the letter was information contained in a publicly available publication and that consequently it is not personal information.

15 At the planning meeting before the Tribunal, the applicant conceded that the information contained in the second paragraph is information about him that is contained in a publicly available publication, namely the Daily Telegraph. Despite the applicant’s concession on this point, the Tribunal must come to its own view on this issue.

16 The Privacy Commissioner interpreted 4(1) of the PIPP Act as reflecting a broad approach to the definition of personal information and submitted that exclusions from the definition of personal information should be construed narrowly. The Commissioner’s view was that s 4(3)(b) was designed to address specific problems that would arise in applying the IPPs having regard to the fact that agencies typically acquire publications for a broad range of possible purposes.

17 On the issue of the meaning of s 4(3)(b), the Privacy Commissioner submitted that information derives its significance from both its content and the context in which it is held and communicated. According to the Privacy Commissioner, the context is important as the same or reasonably similar information can assume a different significance depending on the circumstances in which it is collected, used or disclosed.

18 To illustrate this point, the Privacy Commissioner gave the example of a name and address in a telephone directory as conveying a different meaning from the same name and address held in the file of a child protection agency. The Privacy Commissioner’s view was that while the raw ‘data’ is the same, the context makes the data two different pieces of information. Using the same analogy, the Privacy Commissioner regarded the data about the applicant in a newspaper article and data about the applicant in an authorised communication from an employer as two distinct pieces of information.

19 The Privacy Commissioner submitted that a communication from an employer has much greater authority than that from a newspaper report. This is because a communication from an employer is based on the employer’s own awareness of information relating to the employee and not on information obtained from the newspaper report.

20 In response to the Privacy Commissioner’s submissions that it is necessary to look at the contextual factors to limit the scope and definition of exemptions in the PIPP Act, the agency contended that there is no support within the PIPP Act, regulations or extrinsic materials for this approach.

21 As to the meaning of ‘publicly available publication’, the agency submitted that the phrase should be given its usual grammatical meaning, that is “any publication that is open to or accessible by the public by means of payment or otherwise.”

22 The agency noted that the second reading speech and the relevant Hansard debate did not identify any alternative meaning to be given to the term. The agency also submitted that the failure to qualify the term, or provide any other alternative meaning or pass any regulation excluding daily newspapers provides a clear indication that the intention of Parliament was not to exclude these documents from the definition of “publicly available publications.”

Decision in relation to the second paragraph

23 I take judicial notice of the fact that the Daily Telegraph is a newspaper which is in broad circulation among the general public in the Sydney Metropolitan area. It is clearly a “publicly available publication.” The remaining issue is whether the second paragraph of the letter is information about the applicant contained in the Daily Telegraph.

24 I accept the Privacy Commissioner’s submission that since the PPIP Act is beneficial legislation, s 4(1) should be interpreted broadly and the exclusions from the definition of personal information should be construed narrowly. I also accept the Privacy Commissioner’s submission that meaning is gleaned from both the content and the context in which information or an opinion appears. This was recognised by President O’Connor in Y v Director General, Department of Education & Training [2001] NSWADT 149 when considering the exception in s 4(3)(j):

The test . . . must in each case be whether having regard to the content of the information in issue and the context in which it is found it can reasonably be said to be ‘about an individual’s suitability for appointment or employment.”
25 But the fact that information or an opinion may have a different significance depending on the context does not provide a legal basis for concluding that the exception in s 4(3)(b) does not apply. Regardless of the policy implications, the legislation must be interpreted according to its plain and ordinary meaning. ( Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 per McHugh JA.) In my view that meaning is clear and unambiguous. In this case the information which has been disclosed in the second paragraph of the letter, appears in a publicly available publication, namely the Daily Telegraph. The irresistible conclusion is that that this information is not “personal information” as defined in the PPIP Act.

26 In my view the Privacy Commissioner has overstated the ramifications of such a conclusion for agencies. The fact that information or an opinion appears in a publicly available publication does not necessarily mean that the agency must disclose that information or opinion on request. The provisions of the Freedom of Information Act 1989 regulate the circumstances in which access must be given to information held by an agency.

27 Having concluded that the second paragraph comes within the exclusion in s 4(3)(b), there is no need to consider whether it also comes within any other exclusion in s 4(3). Consequently the Tribunal has no jurisdiction to review the agency’s conduct in disclosing that information.

Submissions in relation to the third paragraph

28 The third paragraph of the letter states that:

There are several issues which I believe would impact on the assessment of whether he is a person of good fame and character. I though it appropriate to flag this with you.
29 The applicant submitted that this paragraph gives rise to an inference that there is further information available to the agency and that he is not of good fame and character. It was the agency’s submission that even if inferences do arise from the statement in the third paragraph, the meaning of “information” does not include such inferences.

30 The ordinary meaning of “information” in the Macquarie Dictionary (3rd edition, The Macquarie Library) is “knowledge communicated or received concerning some fact or circumstance . . . ” The agency submitted that it is clear from the letter that there was further “knowledge of facts or circumstances” available to the author, however, those facts or circumstances were not communicated, therefore they cannot constitute personal information under the PPIP Act.

31 The agency also submitted that if an inference does arise from the third paragraph that the applicant is not a fit and proper person to be a solicitor or barrister, then that inference was also available from the Daily Telegraph article which stated that the applicant was suspended. According to the agency, the fact that the applicant was suspended from duty gives rise to an inference that there were issues relating to his conduct, performance or integrity.

32 The agency went on to argue, in the alternative, that the information concerning the applicant’s conduct while employed as a police officer is not personal information because it comes within the exclusion in s 4(3)(h) of the PPIP Act. Section 4(3)(h) states that ‘personal information does not include information about and arising out of a complaint made under Part 8A of the Police Act 1990’. Accordingly the agency would not have been prevented from providing the actual information about the “issues” mentioned in any complaint and an inference as to those issues could not be “personal information.”

33 Finally the agency submitted that s 4(3)(j) provides that “information or an opinion about an individual’s suitability for appointment or employment as a public sector official” is not “personal information” within the meaning of s 4(1) of the PPIP Act. A “public sector official” is defined in s 3 as including “a person employed in the Public Service, the Education Teaching Service or the Police Service.” According to the agency, the applicant was employed by the Police Service and therefore any information relating to his suitability for employment as a public sector official is not personal information for the purposes of the PPIP Act.

Decision in relation to paragraph 3

34 Paragraph 3 contains a piece of information and an opinion. The information is that there information, other than the fact that the applicant has been suspended, which could impact on an assessment of whether he is a person of good fame and character. The opinion is that these “issues” would impact on that assessment. There is no need to consider whether the information would convey certain inferences because it is the information or opinion itself that must fall within the definition of “personal information”.

35 The exclusion in s 4(3)(b) does not apply because neither article in the Daily Telegraph states or even suggests that there is other information or “issues” which could impact adversely on an assessment of whether the applicant is a person of good fame and character. Furthermore, there is nothing in either article to the effect that anyone holds an opinion that these “issues” would impact on an assessment of the applicant’s good fame and character.

36 In relation to the exemption in s 4(3)(h), there is nothing in the letter to suggest that the “issues” relate to information arising out of a complaint made under the Police Service Act 1990. In any case there is no “information about an individual” in the third paragraph of the letter, other than the information that some other information or “issues” exist.

37 Finally the exemption in s 4(3)(j) does not apply because neither the information nor the opinion in paragraph three is about the applicant’s suitability for appointment or employment as a public sector official. This is a case where it is clear from the context in which the information appears that it relates to his suitability for admission as a legal practitioner.

38 The information in the third paragraph of the undated letter from the agency to the LPAB is “personal information” within the meaning of that term in s 4 of the PPIP Act.

39 I request that the Registry re-list this matter for a further planning meeting on a date to be fixed in consultation with the Tribunal, the parties and the Privacy Commissioner.