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EPR v Commissioner of Police

EPR v Commissioner of Police

Case [2021] NSWCATAD 237 13 August 2021

Administrative Function

Privacy Exemption

Jurisdiction

Publication Prohibition

Administrative Law

Privacy Law

No judgment structure available for this case.

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: EPR v Commissioner of Police [2021] NSWCATAD 237
Hearing dates: On the papers
Date of orders: 5 August 2021
Decision date: 13 August 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Christie, Senior Member
Decision:
(1) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.
(2) Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant in these proceedings or reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person is prohibited.

Catchwords:
ADMINISTRATIVE LAW - privacy – NSW Police Force exemption under s27 PPIP Act from IPP 11 – what is an “administrative” function

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Freedom of Information Act 1989 (NSW) (Repealed)
Police Act 1990 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30
Commissioner of Police, NSW Police Force v YK (GD) [2008] NSWADTAP 78
CTU v NSW Police Force [2017] NSWCATAD 204
DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
EFR v Commissioner of Police [2020] NSWCATAD 159
HW v Commissioner of Police, NSW Police [2003] NSWADT 214
KT v Sydney Local Health Network [2011] NSWADT 171
N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34

Texts Cited:
Nil

Category: Principal judgment
Parties: EPR (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s): 2021/00073125
Publication restriction: Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant in these proceedings or reference to any information, picture or other material that identifies that person or is likely to lead to the identification of the person is prohibited.

Reasons for Decision

Introduction

Pursuant to s 55 Privacy and Personal Information Protection Act 1998 (PPIP Act) the Applicant filed a request on 11 March 2021 for administrative review by the Tribunal (AR Application) of certain conduct of concern of the Respondent alleging such conduct amounted to a breach of s 18 PPIP Act (being Information Privacy Principle (IPP) 11).
On 3 December 2020 the Applicant made a report to the New South Wales Police (NSWPF) alleging that the Applicant’s aunt had stolen jewellery from the Applicant’s deceased grandmother’s body on the evening of her death. The NSWPF disclosed to the Applicant’s aunt and/or her legal representative that the Applicant had made that allegation against her (Conduct of Concern). The Applicant alleges that the Conduct of Concern (i.e. the disclosure of the Applicant’s personal information to the Applicant’s aunt and/or her legal representative)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading EPR v Commissioner of Police

Details

AGLC: EPR v Commissioner of Police [2021] NSWCATAD 237
Case: [2021] NSWCATAD 237
Decision Date: 13 August 2021

CaseChat Overview and Summary

In the matter of EPR against the Commissioner of Police, the dispute centered on whether the NSW Police Force's exemption from the Information Privacy Principles (IPP) under section 27 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) applied to a particular function. The case was heard in the Civil and Administrative Tribunal of New South Wales. The applicant, EPR, sought access to personal information held by the NSW Police Force under the PPIP Act, arguing that the force's exemption did not apply to the function in question.

The court was required to determine the scope of the term "administrative" within the context of section 27 of the PPIP Act, specifically whether it encompassed the function that the NSW Police Force was performing. The primary legal issue was whether the function in question fell within the exemption for "administrative" functions, thereby excluding it from the operation of the IPPs. The court had to interpret the meaning of "administrative" and assess whether the function at hand was genuinely administrative in nature.

The tribunal considered the legislative intent behind section 27 and the broader context of the PPIP Act. It found that the term "administrative" should be interpreted narrowly, focusing on the nature of the function rather than the entity performing it. The tribunal concluded that the function in question was not administrative in nature, and therefore, the exemption did not apply. Consequently, the NSW Police Force was required to comply with the IPPs in relation to the personal information sought by the applicant. The tribunal ordered that no action would be taken in the matter and prohibited the publication of the applicant's name or any identifying information.

Orders

Orders of the court

(1) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter.

(2) Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant in these proceedings or reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person is prohibited.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

EPR v Commissioner of Police [2021] NSWCATAD 237

Most Recent Citation

FQS v Independent Commission Against Corruption [2023] NSWCATAD 82

Cases Citing This Decision

FQS v Independent Commission Against Corruption [2023] NSWCATAD 82
Citation 1 (Para 39)

…corporate services areas performing functions such as personnel, budget and information technology”: EPR v Commissioner of Police [2021] NSWCATAD 237 at [23].…

See all citing cases →

Cases Cited

EFR v Commissioner of Police [2020] NSWCATAD 159
Citation 1 (Para 22)

…In EFR v Commissioner of Police [2020] NSWCATAD 159 ( EFR ) Principal Member Pearson, after considering the cases noted above in [19] to [21] above, summarised the current approach of the Tribunal to applying the s 27 PPIP Act exemption as follows:…
DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193
Citation 2 (Para 26)

…The reasoning of CTU was also followed in DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193 and EFR.…
DED v Randwick City Council [2017] NSWCATAD 327
Citation 3 (Para 11)

…Respondent in this case), not to review the findings of the internal review report (i.e. the IR Decision in this case): DED v Randwick City Council [2017] NSWCATAD 327 at [50]. The Tribunal considers the Conduct of Concern (in this case) afresh, based on the evidence and material before it at the time of the hearing:…
CTU v NSW Police Force [2017] NSWCATAD 204
Citation 4 (Para 23)

…In CTU v NSW Police Force [2017] NSWCATAD 204 at [18] ( CTU ) and as referenced in EFR at [31] the Tribunal has held that, unless the context indicates some other meaning is intended, the word “administrative” in s 27(2) PPIP Act is to be given its ordinary or commonly understood meaning. According to the Macquarie Di…
AEC v Commissioner of Police (NSW) [2013] NSWADTAP 30
Citation 5 (Para 21)

…In AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 ( AEC ) the Appeal Panel gave further consideration to the meaning of the term “administrative” as used in s 27(2) PPIP Act:…
AEC v NSW Police Force [2013] NSWADT 32
Citation 6

…ich AEC’s ex-partner sought an Apprehended Violence Order and AEC was charged with assault. The Tribunal at first instance ( AEC v NSW Police Force [2013] NSWADT 32) had found that dealing with AEC’s criminal records in that matter could not be characterised as administrative, referring to the distinction drawn in…
KT v Sydney Local Health Network [2011] NSWADT 171
Citation 7 (Para 11)

…al before it at the time of the hearing: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and KT v Sydney Local Health Network [2011] NSWADT 171 at [64].…
Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78
Citation 8 (Para 4)

…ter noting the rejection of the core versus non‑core functions approach by the Tribunal in Commissioner of Police, NSW Police Force v YK (GD) [2008] NSWADTAP 78 ( YK ), the Respondent submits that the Applicant’s submissions make a similar distinction as drawn in HW between core and non‑core functions by considering…
HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214
Citation 9 (Para 3)

…Citing HW v Commissioner of Police, NSW Police [2003] NSWADT 214 ( HW ) the Respondent notes that “administrative functions” of the NSWPF relate to “corporate services areas performing functions such as personnel, budget and information technology” which has continued to be applied in subsequent cited cases.…
N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34
Citation 10

…ice [2003] NSWADT 214 KT v Sydney Local Health Network [2011] NSWADT 171 N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 Texts Cited: Nil Category: Principal judgment Parties: EPR (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self-Repres…
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Citation 11 (Para 11)

…(in this case) afresh, based on the evidence and material before it at the time of the hearing: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and KT v Sydney Local Health Network [2011] NSWADT 171 at [64].…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 4)
Essential Services Act 1988 (NSW)
1 mention
Freedom of Information Act 1989 (repealed) (ACT)
1 mention
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
1 mention
Police Act 1990 (NSW)
1 mention (from Para 7)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 1)
State Emergency and Rescue Management Act 1989 (NSW)
1 mention

Medium Neutral Citation:	EPR v Commissioner of Police [2021] NSWCATAD 237
Hearing dates:	On the papers
Date of orders:	5 August 2021
Decision date:	13 August 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Christie, Senior Member
Decision:	(1) Pursuant to s 55(2) of the Privacy and Personal Information Protection Act 1998 no action will be taken in this matter. (2) Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant in these proceedings or reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person is prohibited.
Catchwords:	ADMINISTRATIVE LAW - privacy – NSW Police Force exemption under s27 PPIP Act from IPP 11 – what is an “administrative” function
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1989 (NSW) (Repealed) Police Act 1990 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 Commissioner of Police, NSW Police Force v YK (GD) [2008] NSWADTAP 78 CTU v NSW Police Force [2017] NSWCATAD 204 DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 EFR v Commissioner of Police [2020] NSWCATAD 159 HW v Commissioner of Police, NSW Police [2003] NSWADT 214 KT v Sydney Local Health Network [2011] NSWADT 171 N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34
Texts Cited:	Nil
Category:	Principal judgment
Parties:	EPR (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Applicant (Self-Represented) Crown Solicitor (Respondent)
File Number(s):	2021/00073125
Publication restriction:	Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant in these proceedings or reference to any information, picture or other material that identifies that person or is likely to lead to the identification of the person is prohibited.