FBQ v Commissioner of Police

[2022] NSWCATAD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FBQ v Commissioner of Police [2022] NSWCATAD 110

Hearing dates:

On the Papers

Date of orders:

05 April 2022

Decision date:

05 April 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

(1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant or his agent is prohibited.

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

Catchwords:

ADMINISTRATIVE LAW – privacy – exemptions – NSW Police Force - administrative and educative functions – made in connection with proceedings for an offence or for law enforcement purposes

Legislation Cited:

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

AEC v NSW Police Force [2013] NSWADT 32

Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78

CTU v NSW Police Force [2017] NSWCATAD 204

DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39

DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193

GV v Office of the Director of Public Prosecutions [2003] NSWADT 177

HW v Commissioner of Police, NSW Police Service [2003] NSWADT 214

Category:

Principal judgment

Parties:

FBQ (Applicant)
Commissioner of Police (Respondent)

Representation:

FBQ (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00320405

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

REASONS FOR DECISION

Introduction

1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) Civil and Administrative Tribunal Act 2013.

Background

2. The Applicant seeks administrative review of conduct of the New South Wales Police Force which he alleges amounted to a breach of s 18 of the Privacy and Personal Information Protection Act 1998 (PPIP Act).

Agreed Facts

3. The parties agreed an initial statement of facts, save for one correction made by the applicant and subsequently accepted by the respondent. The facts accepted and agreed are:

1. On 28 December 2018 the applicant was arrested and taken to Sutherland police station and charged with certain offences.

2. On 29 December 2018 the police media unit issued a media release in respect of the incident, arrest and charging. This media release stated that the applicant’s first court appearance was listed for 7 February 2019.

3. On 15 January 2019 the applicant appeared at Sutherland local court.

4. On 7 February 2019 four media outlets made inquiries as to the identity of the person the subject of the 29 December 2018 media release. Sarah Burnell, an unsworn public relations officer, provided the applicant’s name in response to those inquiries. In the course of so doing, Ms Burnell became aware of the error that had been made in the media release as to the date of the applicant’s first court appearance. Ms Burnell informed inquirers who made subsequent contact that the applicant’s first court appearance occurred on 15 January 2019.

5. On 6 May 2021, in response to an application made under the Government Information (Public Access) Act 2009, the Agency provided to the Applicant a copy of the 7 February 2019 media log in relation to his prosecution.

The Application

4. In his 24 January 2022 submission to the Tribunal , the Applicant stated

“I am seeking administrative review of the conduct of the NSWPF in disclosing my personal information to members of the media contrary to s18 of the Privacy and Personal Information Protection Act 1998 (“the PIPPA”) … my personal information included my name and the fact I had been charged with child sex offences”.

Relevant legislation

5. The applicant complains of a breach of s 18 of the PIPPA, which is in the following terms:

18 Limits on disclosure of personal information

(1)   A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless—

(a)   the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)   the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)   the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2)   If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

6. The respondent commissioner relies on s 27 of the PIPPA and further, or in the alternative, relies upon s 23(5)(a) of the PIPPA. Those sections relevantly provide as follows:

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 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 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 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 in connection with the exercise of their administrative and educative functions.

23   Exemptions relating to law enforcement and related matters

(1)  A law enforcement agency is not required to comply with section 9 if compliance by the agency would prejudice the agency’s law enforcement functions.

(2)  A public sector agency (whether or not a law enforcement agency) is not required to comply with section 9 if the information concerned is collected in connection with proceedings (whether or not actually commenced) before any court or tribunal.

(3)  A public sector agency (whether or not a law enforcement agency) is not required to comply with section 10 if the information concerned is collected for law enforcement purposes. However, this subsection does not remove any protection provided by any other law in relation to the rights of accused persons or persons suspected of having committed an offence.

(4)  A public sector agency (whether or not a law enforcement agency) is not required to comply with section 17 if the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary for law enforcement purposes or for the protection of the public revenue.

(5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned—

(a)  is made in connection with proceedings for an offence or for law enforcement purposes (including the exercising of functions under or in connection with the Confiscation of Proceeds of Crime Act 1989 or the Criminal Assets Recovery Act 1990), or

(b)  is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or

(c)  is authorised or required by subpoena or by search warrant or other statutory instrument, or

(d)  is reasonably necessary—

(i)  for the protection of the public revenue, or

(ii)  in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed.

(6)  Nothing in subsection (5) requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement.

(6A)  A public sector agency is not required to comply with the information protection principles with respect to the collection, use or disclosure of personal information if—

(a)  the agency is providing the information to another public sector agency or the agency is being provided with the information by another public sector agency, and

(b)  the collection, use or disclosure of the information is reasonably necessary for law enforcement purposes.

(7)  A public sector agency (whether or not a law enforcement agency) is not required to comply with section 19 if the disclosure of the information concerned is reasonably necessary for the purposes of law enforcement in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed.

(8)  In this section—

(a)  a reference to law enforcement purposes includes a reference to law enforcement purposes of another State or a Territory or the Commonwealth, and

(b)  a reference to an offence includes a reference to an offence against a law of another State or a Territory or the Commonwealth, and

(c)  a reference to the protection of the public revenue includes a reference to the protection of the public revenue of another State or a Territory or the Commonwealth.

Submissions

Respondent’s submissions

7. The respondent concedes that it disclosed the Applicant’s personal information by providing his name and the fact he had been charged with child sex offences in response to four media inquiries. The respondent submits “The issue that arises in these proceedings is whether those disclosures contravened s 18(1) of the PPIP Act”. The respondent submits “that it was exempt from complying with s 18(1) by operation of s 27 and, further or in the alternative, by operation of s 23(5)(a)”.

8. As to s 27, the respondent submits “the weight of authority [citing Commissioner of Police v YK (GD) [2008] NSWADTAP 78 (“YK”)] supports a finding that the NSWPF’s disclosure of the applicant’s name in response to media inquiries was not in connection with either administrative or educative functions, and that the NSWPF was therefore not required to comply with s 18. The respondent submits the disclosures “were made in the exercise of (or are at least incidental to the exercise of) the Agency’s policing function of the prevention and detection of crime by informing the public through the media of alleged criminal offending, including for the purpose of increasing both actual and perceived public safety, and deterring people from engaging in criminal activity by demonstrating to the public that the NSWPF investigates and prosecutes alleged crimes. The practice is also consistent with the principles of open justice”.

9. As to s 23(5)(a), the Respondent submits the phrase “in connection with” should not be construed narrowly so as to limit the exemption and that at the time of the disclosures to the media, criminal proceedings against the applicant were on foot. The respondent submits “the identity of an accused person is inherently connected with criminal proceedings, given that proceedings alleging specific offences are brought against a particular accused…the disclosure of the name of the applicant subsequent to his first court appearance was clearly “in connection with proceedings for an offence”. Accordingly, s 23(5)(a) applied and the NSWPF was not required to comply with s 18 in relation to the disclosures.

10. The Respondent referred to the NSWPF Media Policy, noting at [63] “At the case conference…the Applicant indicated an intention to argue in these proceedings that the NSWPF Media Policy is unlawful. The Respondent submits that this question is irrelevant in the proceedings. The Tribunal is not required to determine the lawfulness of the Media Policy or to give effect to it”.

Applicant’s submissions

11. The Applicant submits “Specific actions purportedly in accordance with particular elements of that [NSWPF Media] policy are relevant to identifying these as administrative tasks. If so, then the carve-out to the exemption provided by s 27(2) of the PPIPA would be enlivened”.

12. The Applicant referenced Tribunal decisions; CTU v NSW Police Force (2017) NSWCATAD 204 and HW v Commissioner of Police (2003) NSWADT 214, and submitted that the subject disclosures were done in an administrative capacity and therefore the exemption did not apply. The Applicant submits the “detection” aspect of the exemption claims is not relevant because the investigation had been completed and charges laid at the time of disclosure and that the “prevention of crime…effected through engaging with the media to facilitate ‘deterring people from engaging in criminal activity’ had already been achieved in full through” the initial media statement of 28 December 2018, a subsequent detailed media release and advice and a media presentation, all done on 28 December 2018 and reported in media the next day. “There was no additional utility to the stated ‘deterrence’ intent through disclosing my identity to individual journalists 5 weeks later”.

13. The Applicant submits that the disclosure by Ms Burnell : “did not add any value to court proceedings. She was not responsible for an active investigation, nor involved in pure police work…more akin to those in basic call-centre operations – a simple administrative function…this was very much a routine process”. The applicant also stated “I am not pressing a claim the disclosures were connected with the exercise of any educative functions”.

14. As to s 23(5)(a), the Applicant submits for the exemption to apply the action of disclosing the information, not the actual content of the disclosure, must be made in connection with the proceedings and the beneficial nature of the PPIPA requires the exemption to be interpreted narrowly. It is also submitted the disclosure “did not contribute to the initiation, conduct or advancement of proceedings. The purpose for so doing was more likely associated with fostering positive relationships with journalists covering NSWPF matters as specified in Ms Burnell’s Role Description”.

15. The Applicant submits that Ms Burnell’s role as a Public Relations Officer is a relevant consideration as to whether or not s 23(5)(a) applies to exempt the disclosures. The Applicant notes the fact that administrative employees are prevented from performing police functions (clause 72 Police Regulation 2015) and submits that Ms Burnell was an administrative employee performing tasks “far removed from the spectrum of operational areas” and “was performing a routine administrative support task for a purpose not connected with the initiation, conduct or advancement of proceedings”.

Respondent’s reply submissions

16. The Respondent submits there can be no “artificial limitation to the exemptions in s 27 and s 23(5)(a) by reference to irrelevant judicial review principles and no discretion for a relevant office-holder to comply with Information Privacy Principles, which must be properly exercised…If the exemption applies the officer was not required to comply and there are no qualifications to that non-requirement.”

17. The Respondent repeated its previous submission that compliance or otherwise with the NSWPF Media Policy was not relevant to determining whether the statutory exemptions apply.

18. The Respondent submits the NSWPF’s detection of crime function is broader than simply detecting the particular crime of which the Applicant was accused (and acquitted), or any other specific alleged crime – the relevant function is the detection of crime at large, generally. The disclosures in this instance were made in the exercise of, or are at least incidental to the exercise of that broader function. Facilitating media coverage of the progress of police investigations and related prosecutions can be assumed to contribute to greater public awareness and greater public confidence and that greater public confidence contributes to greater trust in the NSWPF and in turn to greater community co-operation with investigations and other initiatives directed to the detection of crime.

19. The Respondent submits that continued reporting on ongoing investigations or court proceedings contribute to the deterrent effect beyond initial media releases – including reporting on further developments such as court appearances.

20. The Respondent submits the disclosure was not routine and to the contrary was made in response to express and lawful inquiries regarding specific ongoing proceedings which can be distinguished from the routine provision of material such as for a criminal history request.

21. The Respondent submits the proposition that the words ‘in connection with’ should be construed so as to require the purpose for making the disclosure to be connected with the proceedings for the exemption to apply, is contrary to statutory interpretation principles and authority and should be rejected. The Respondent submits that read in context “it must be noted that the legislature expressly referred to “purpose” in relation to the alternative basis for the exemption in s 23(5)(a) – “for law enforcement purposes” – but did not do so in relation to disclosures made “in connection with proceedings for an offence”. Having regard to this distinction, the ordinary meaning of “in connection with proceedings for an offence”, and in light of the “specific, considered and clear nature of the provision” there is no reason to adopt a narrower construction of this provision.

22. The Respondent submits the applicant’s general and vague descriptions of Ms Burnell’s role and duties are irrelevant to the statutory inquiries the Tribunal is undertaking in this review. Whether or not the exemptions apply must be considered by reference to the particular conduct under review. An administrative clerk (as opposed to a police officer) may answer a triple-O call and dispatch police cars to the scene of a crime, but that conduct could hardly be characterised as “administrative” as opposed to policing merely by virtue of the clerk’s job title. The particular circumstances of the conduct must be considered.

Discussion and findings

23. The information protection principles (IPPs) are provided in Div 1 of Part 2 of the PPIP Act, in ss 9-19. Div 2 of Part 2 includes general provisions, including s 20, which states that the IPPs apply to public sector agencies, and s 21, which states that a public sector agency must not do anything or engage in any practice that contravenes an IPP applying to the agency. Div 3 of Part 2 provides specific exemptions from the principles. The respondent Commissioner relies on the specific exemption applicable to the NSW Police Force (and other specified law enforcement agencies) in s 27(1) of the PPIP Act and, or in the alternative, the exemption for public sector agencies in s 23(5)(a).

23. The exemption granted by s 27(1) does not apply to those agencies “in connection with the exercise of their administrative and educative functions”. The interpretation of s 27, and in particular, the term “administrative” as used in s 27(2) of the PPIP Act, has been considered in a number of decisions of this Tribunal and its predecessor, the Administrative Decisions Tribunal.

24. In HW v Commissioner of Police, NSW Police Service [2003] NSWADT 214 the Tribunal distinguished between what it described as “core” responsibilities, which would not be described as “administrative”, and other responsibilities which are not part of the core responsibilities of NSW Police:

25 The question therefore is where does the conduct in issue lie along the spectrum of the operational areas identified by s 27. The section seeks, I consider, to draw a distinction between the core responsibility of the Police Service and its ‘administrative’ and ‘educative’ functions.

26 The provision of ‘police services’ could perhaps be described as the core responsibility. Another way it was put in submissions was that its core responsibility was ‘law enforcement’. The Police Act 1990 s 6 provides that the Police Service has three functions, the first of which is ‘to provide police services for New South Wales’. ‘Police services’ are defined as follows:

"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.

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)). 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.

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 a 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 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.

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.)

26. In Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 the Appeal Panel disapproved reliance in the decision under appeal on a “core” and “non-core” distinction. The Appeal Panel said:

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.

…

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)

27. In AEC v Commissioner of Police, NSW Police Force.(GD) [2013] NSWADTAP 30 the Appeal Panel gave further consideration to the meaning of the term “administrative” as used in s 27(2):

23. The view has been expressed that the adjective 'administrative' bears in this context the connotation of activities relating to the internal administration of the agency, i.e. activities that are the usual incidents of any organisation whatever its official, public functions may be. See, to that effect, Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 at [20] ff. The Appeal Panel in that case expressed the view that the 'administrative functions' to which s 27(2) refers are those necessary in any agency or any organisation, such as the management of personnel records. The Commissioner accepts this interpretation.

24. It may be that this is too narrow a construction. Section 6 of the Police Act 1990, 'Mission and functions of the NSW Police Force', 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.

(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.

25 The primary function of the Police Force is the one set out in s 90(2)(a), i.e. 'to provide police services for New South Wales'. Functions vested in the Police Force under sub-section (2)(b) may fall outside the immunity conferred by s 27 of the Privacy Act, for example the functions connected with security and firearms licensing.

28. In these proceedings the issue is whether Ms Burnell's disclosure to the four media outlets of the personal information of FBQ was "in connection with the exercise of …administrative" functions of the NSWPF. If it could not be so characterised, the NSW Police Force was not required to comply with the IPPs in respect of that conduct.

29. As YK decided, the language of "core" and "non-core" is not the basis for analysis, and the word "core" was used in HW as an aid to understanding the generality of the policing functions of the NSW Police Force. As noted in HW at [29], the term "administrative" cannot refer to the entirety of the administrative activity of the NSW Police, which would include investigation of crime, and it is intended to have a narrower compass. As discussed in HW at [30], in determining what that is, the context that has given rise to the conduct in issue is relevant.

30. Section 27(1) of the PPIP Act excludes all of the functions of the NSW Police Force from compliance with the IPPs. The question then is under s 27(2) whether the particular activity or conduct the subject of the complaint is, to use the language of YK at [20], "brought back under the regulation of the Act because it belongs to the 'administrative' or 'educative' services of the Police Force".

31. In CTU v NSW Police Force [2017] NSWCATAD 204 at [18], the Tribunal held that the word "administrative" in s 27(2) is to be given its ordinary meaning, or commonly understood meaning, unless the context indicates some other meaning is intended. That meaning, according to the Macquarie Dictionary, is "relating to administration; executive; administrative ability; administrative functions". Administrative functions would include, as held in HW at [30], "corporate services areas performing functions such as personnel, budget and information technology". As discussed in AEC, however, the term "administrative" is not limited to functions relating to corporate services.

32. In AEC the NSW Police had disclosed information about a spent conviction for AEC to his ex-partner in the course of Local Court proceedings in which 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 HW in the context of handling of criminal records to disclosures which occur in the course of the investigation of crime, and those which are done administratively, for example for background checks on prospective employees. That conclusion was not disturbed on appeal: AEC v Commissioner of Police, NSW Police Force(GD) [2013] NSWADTAP 30 at [29].

33. In CTU the applicant had been convicted and sentenced to imprisonment, suspended on his entering into a bond, in 2005. In 2015 the applicant was issued with a National Criminal History Check and a National Police Certificate, each showing the conviction. It was not in dispute that NSW Police provided information about the applicant's conviction to third parties for the purposes of the National Criminal History Check and National Police Certificate. The issue was whether the provision of a criminal record check to members of the public was in connection with the administrative functions of NSW Police. The Tribunal rejected a submission that information sharing is a public function which is not administrative, holding at [19] that provision of criminal history information to a third party for the purposes of a National Criminal History Check or National Police Certificate, where done as part of a routine application, is an administrative function according to the ordinary meaning of the terms. The processing of an application for a National Police Check, online and on payment of a fee, is an administrative function, as is the processing of an application for a criminal records check.

34. The Tribunal distinguished AEC, stating (at [22]):

22. The facts of AEC are clearly distinguishable from those of the present case. AEC involved a situation where the Police disclosed information about a person's criminal history in the course of proceedings for an apprehended violence order (or perhaps for the purposes of the assault proceedings). The disclosure was not done as part of any routine processing of a criminal history application or similar; rather it was in the context of court proceedings involving an alleged crime. The provision of criminal history information in a routine way when an individual completes a form is of a more administrative nature. Consistently with what was said in AEC, the context in this case requires a different result.

35. That reasoning was followed in DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193, in which NSW Police had responded to a request for information by the Commissioner for Victims Rights in considering DKB's application for compensation under the Victims Rights and Support Act 2013. The Tribunal at first instance held that at the time a police officer wrote a COPS Event report, an active investigation into the alleged offence was ongoing; and at the time that officer wrote the email responding to the Commissioner of Victims Rights, advising that the investigation was due to be suspended due to lack of evidence, it was still ongoing. The Tribunal concluded (at [27]) that the email was not a routine criminal records check, but an express and lawful inquiry made to the officer conducting an investigation who, when replying was acting in that role and not simply undertaking an administrative task. An appeal from that decision was dismissed: DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39.

36. The respondent submits the definition of “administrative” adopted in CTU “contemplates administrative tasks directed to the internal management or direction of an office, as opposed to functions or tasks that involve engagement with third parties” and “In contrast, disclosure in this case was to third parties for a purpose unrelated to the internal management of the NSWPF”. The respondent relies on the formulation of the meaning of the term administrative in s 27(2) given in YK at [20]. The subsequent Appeal Panel decisions in AEC and DKB have taken a broader approach to the question. Neither of those decisions supports the proposition that any provision of information about the detail of a person's criminal history is an administrative function, however, depending on context it may be. That is illustrated in the distinction drawn at [30] in HW between disclosures of criminal records in the course of the investigation of crime, from instances where that is done administratively such as background checks on prospective employees.

37. In the present circumstances, Ms Burnell disclosed the personal information to the media outlets in response to specific inquiries from those media outlets which arose from the initial media releases. The applicant submits this was mere administrative action because Ms Burnell was an unsworn Public Relations Officer and it was done to curry favour with the media. No evidence is offered in support of that latter assertion. There is nothing in the material before me to demonstrate a connection between the disclosures and matters of internal administration of the NSWPF. The disclosures were to third parties and were not related to “corporate services areas performing functions such as personnel, budget and information technology”. They were unrelated to the administration of the NSWPF, except in so far as they assisted the media with reporting on police activities

38. This was not a routine provision of information in response to an application and payment of a fee, as was the case in CTU; rather, it was analogous to the actions referred to at para [28] in HW, or in AEC. Whether or not the disclosures to the media were made in compliance with the NSWPF Media Policy, they were not done "in connection with the exercise of…administrative ...functions" of the NSW Police Force so as to fall within s 27(2) of the PPIP Act. That means that applying s 27(1) of the PPIP Act, the NSW Police Force was not required to comply with the relevant IPPs. The applicant concedes the disclosures were not educative functions. I find the disclosures were not made in the exercise of administrative and educative functions and that the s 27 exemption applies to them.

39. The applicant submits .the alternative exemption pursuant to s 23(5) is not available because “The beneficial nature of the PPIPA requires the exemption to be interpreted narrowly, taking into account the purpose of the action over which the exemption is being claimed”. The respondent submits there is no ambiguity in the language of the exemption and no reason to construe it narrowly so as to limit the exception. The respondent refers to GV v Office of Director of Public Prosecutions [2003] NSWADT 177 in which the Tribunal considered the operation of the phrase “in connection with” in the context of s 23(2) of the Privacy Act. The Tribunal there held, at 55:

The respondent relied on the ordinary meaning of the provision and said that it applied. I agree. On a proper reading of section 23(2) of the Privacy Act, there is no basis for construing the section as narrowly as the applicant suggests. The section does not apply to exempting the whole of the information privacy principles. It only targets and exempts specific collections that would otherwise be in breach of section 9. There is no compelling reason for the Tribunal to accord such a narrow construction having regard to the specific, considered and clear nature of the provision. I do not consider there is any ambiguity in the provision.

40. The respondent submits the same reasoning in GV should be applied in this case and that there is no basis for a narrow reading of the phrase “in connection with”. I agree with that submission, at the time of the disclosures the applicant had been charged and criminal proceedings were in train and the disclosures were for the specific purpose of informing the public via the media of those criminal proceedings for an offence(s).

41. The Tribunal is satisfied that the disclosures to the media on 7 February 2019, fell within the exemption for public sector agencies provided by s 23(5)(a) of the PPIP Act. The disclosures were made in connection with proceedings for an offence.

42. The Tribunal is satisfied that the disclosures to the media on 7 February 2019, fell within the exemption for NSW Police provided by s 27(1) of the PPIP Act. The disclosures were not "in connection with the exercise of…administrative ...functions" of the NSW Police Force so as to fall within s 27(2) of the PPIP Act.

40. Consequently, I find the NSW Police Force in making the disclosures was not required to comply with the IPPs set out in Div 1 of Part 2, including those in ss 17 and 18 of the PPIP Act relating to use and disclosure of personal information. That conclusion means the disclosures to the media could not be a contravention of the PPIP Act.

41. Section 55(2) of the PPIP Act sets out the orders the Tribunal can make on reviewing conduct of an agency that is alleged to amount to a contravention of an IPP. This includes deciding to take no further action. In circumstances where the respondent agency was not required to comply with the IPPs, the appropriate order is to decide to take no further action.

Order

45. The order of the Tribunal is:

1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the applicant is prohibited.

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

**********

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: 05 April 2022