GA v Commissioner of Police, NSW Police

[2004] NSWADT 254

Pending Appeal:

CITATION:	GA v Commissioner of Police, NSW Police [2004] NSWADT 254
DIVISION:	General Division
PARTIES:	APPLICANT GA RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043330
HEARING DATES:	26/10/2004
SUBMISSIONS CLOSED:	10/26/2004
DATE OF DECISION:	11/05/2004
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 GL v Director-General, Department of Education and Training [2003] NSWADT 166 JD v Director General, NSW Department of Health [2004] NSWADT 7 (revised) Y v Director-General, Department of Education and Training [2001] NSWADT 149 BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64
REPRESENTATION:	APPLICANT In person RESPONDENT Senior Sergeant Shepherd, solicitor
ORDERS:	The Tribunal does not have jurisdiction to review the conduct of the subject GA's application

Introduction

1 GA alleges that while investigating a complaint he made about police officers, NSW Police breached his privacy by providing a copy of the complaint report to the Principal of the High School where one of his son’s was attending at the time. In a letter of 9 September 2004 GA asked NSW Police, pursuant to the Privacy and Personal Information Protection Act 1998 (PPIP Act), to internally review their conduct relating to the investigation of his complaint. GA stated that he was not limiting the scope of his request in any way. Although the application for internal review was made on behalf of himself and members of his family, GA is the sole applicant before the Tribunal.

2 NSW Police wrote back to GA the following day declining his application because it was too broad. NSW Police advised GA that until such time as he could provide sufficient particulars to enable an investigation to be conducted, his application was refused. GA applied to the Tribunal for a review of the conduct of NSW Police under the PPIP Act. A preliminary hearing was set down to determine whether the Tribunal has jurisdiction to hear his application.

Tribunal’s jurisdiction

3 Source of jurisdiction. The Tribunal’s jurisdiction arises from s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) and s 55(1) of the PPIP Act. Section 38 confers jurisdiction on the Tribunal to review a decision (or class of decisions) if an enactment so provides. In this case although the review of conduct is not a review of a decision, the Tribunal has decided that when determining matters under the PPIP Act it is exercising its review jurisdiction, rather than its original jurisdiction (Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 (4 June 2003). The relevant enactment conferring jurisdiction in this case is s 55(1) of the PPIP Act which states that:

(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 Tribunal for a review of the conduct that was the subject of the application under section 53.

4 There are three pre-conditions to the Tribunal’s jurisdiction under s 55:

- The person must have made an application for internal review under s 53;

- The person must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application; and

- The person must be asking the Tribunal to review the conduct that was the subject of the application.

5 Section 53. Under s 53(1) “a person ... who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.” The person does not need to identify the information protection principles or privacy code of practice on which he or she relies. (GL v Director-General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 (revised).) But the person does need to identify the conduct about which he or she is aggrieved. The first question is the extent to which an applicant must identify the conduct that he or she is asking to be reviewed for the request to be regarded as an application under s 53.

6 The long title of the PPIP Act includes the following purpose: “to provide for the protection of personal information, and for the protection of the privacy of individuals generally”. In view of that broad purpose and the beneficial nature of the legislation, s 53(1) should be interpreted widely to ensure that applicants are not unnecessarily denied the right to have conduct about which they are aggrieved internally or externally reviewed. Nevertheless, the consequences of a broad interpretation need to be considered. The broadest possible interpretation of s 53(1) is that it would be sufficient for an applicant to advise an agency that he or she was aggrieved by some unidentified conduct in order to be entitled to a review of that conduct. That interpretation would lead to the absurd situation that an agency would have to identify and investigate every transaction or communication relating to the personal information of the applicant which could possibly constitute a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register: s 52.

7 In my view, an applicant’s entitlement to an internal review (and ultimately an external review) depends on that person identifying the conduct about which they are aggrieved in sufficient detail to allow the agency to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. If the application does not identify the conduct with that level of particularity, then the agency should initially request further information from the applicant. If an applicant does not provide that information within a reasonable time, then the agency will be justified in declining to review the conduct.

8 GA identified the conduct about which he was aggrieved in the following way:

While investigating complaint CIS/01003479, NSW Police breached our privacy by providing a copy of the complaint report to Principal (name deleted) at (name deleted) High School. I do not limit the scope of this request in any way whatsoever.

9 Scope of request unlimited. There are two components to this request: the identification of a transaction between a police officer and the Principal of a High School and a general statement that he is not limiting the scope of his request. Dealing firstly with the second component, it is not clear what GA meant by the assertion that he “does not limit the scope of this request in any way whatsoever”. He could mean that he is aggrieved by other conduct that he has not identified. If that is the case, then he is not entitled to an internal review of that conduct because the conduct has not been sufficiently identified. Alternatively GA may have meant that he does not limit the ways in which the conduct which he has identified could be a breach of the PPIP Act. If that is what he meant, then the comment is irrelevant. He is not obliged to identify any specific breach of the PPIP Act. Whatever GA meant by this general statement, it does not trigger his entitlement to an internal review.

10 Providing a copy of the complaint report to the Principal. In relation to the first component of GA’s request, NSW Police were apparently not able to review that conduct until they knew the identity of the person who provided the report and the date on which the report was provided. That is why they asked GA to provide those particulars in their letter of 10 September. GA did not respond to that letter as he believes his application was wrongly declined. We find on the basis of the content of the correspondence, that NSW Police were unable to identify the conduct in sufficient detail to allow it to determine whether it constitutes a breach of an information protection principle or a privacy code of practice or the disclosure of personal information kept in a public register. Since GA has not identified the conduct about which he is aggrieved in sufficient detail to allow the agency to determine whether there has been a breach of the PPIP Act, he is not entitled to an internal review of that conduct. The agency has requested further particulars but GA has not provided any further information. In those circumstances, the first pre-condition to the Tribunal’s jurisdiction (that GA has made an application for internal review under s 53) has not been met.

11 While this conclusion disposes of the matter, in case it is not correct, the other two pre-conditions for jurisdiction are considered below.

Dissatisfaction with the findings of the review or the action taken by the public sector agency

12 The second pre-condition for the Tribunal to have jurisdiction is that GA must be dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application. GA says that the “action taken” in this case was to decline his application for review and that as he is dissatisfied with that action, the Tribunal has jurisdiction to externally review the conduct which was the subject of his application. That submission is contrary to the findings of President O’Connor in Y v Director-General, Department of Education and Training [2001] NSWADT 149. In that case, the Tribunal held that the word “action” in s 55(1)(b) refers to action taken by the agency after investigating the conduct and making findings. In BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 Judicial Member Britton emphasised the fact that the “action taken by the public sector agency” is action taken “in relation to the application”. In her view action taken in relation to the application could include action other than action taken following an internal review.

13 I am persuaded by President O’Connor’s interpretation of s 55(1)(b) in Y v Director-General, Department of Education and Training [2001] NSWADT 149 and the reasons for his conclusion. Under s 53 the initial responsibility for reviewing conduct lies with the agency. It is only if the person is dissatisfied with the internal review that he or she is entitled to make an application to the Tribunal for what can be regarded as an “external” review. In those circumstances, the second pre-condition to the Tribunal’s jurisdiction (that GA was dissatisfied with the findings of the review or the action taken by the public sector agency in relation to the application) has not been met and the Tribunal does not have jurisdiction.

Asking the Tribunal to review the conduct that was the subject of the application.

14 The third pre-condition, that GA is asking the Tribunal to review the conduct that was the subject of the application, has been met, but since the other two pre-conditions have not been met, the Tribunal does not have jurisdiction.

Order

The Tribunal does not have jurisdiction to review the conduct the subject of GA’s application.

15 Rather than providing further details of the conduct about which he was aggrieved, GA chose to lodge an application with the Tribunal and put NSW Police to the unnecessary expense of defending this matter. GA has a long history of pursuing matters under the PPIP Act in this Tribunal but his most recent conduct in lodging the present application is, in my view, vexatious. GA should make a genuine attempt to identify the conduct about which he is aggrieved and to allow the agency to review that conduct, before filing an application with the Tribunal. Any repetition of this kind of conduct may result in an adverse costs order being made against him under s 88 of the Administrative Decisions Tribunal Act 1997.