GA v Department of Education and Training and NSW Police (No 3)

[2005] NSWADT 70

CITATION:	GA v Department of Education and Training and NSW Police (No 3) [2005] NSWADT 70
DIVISION:	General Division
PARTIES:	APPLICANT GA FIRST RESPONDENT Director General, Department of Education and Training SECOND RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	023250, 043159
HEARING DATES:	3/03/2005
SUBMISSIONS CLOSED:	03/03/2005
DATE OF DECISION:	03/31/2005
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	Privacy - information protection principle - collection - from third party - Privacy - information protection principle - disclosure to third party - Privacy - information protection principle - personal information - use
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Police Act 1990 Privacy & Personal Information Protection Act 1998
CASES CITED:	Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 FM v Vice-Chancellor, Macquarie University [2003] NSWADT 78 GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10 GA v Department of Education and Training and NSW Police [2004] NSWADTAP 18 JD v Director General, NSW Department of Health (No.2) [2004] NSWADT 227 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT S Free, solicitor SECOND RESPONDENT P Mclaughlin, solicitor
ORDERS:	1. The first respondent was not required to comply with section 18 of the Privacy and Personal Information Protection Act 1998; 2. The first respondent did not contravene any of the information protection principles of the Act; 3. The second respondent did not contravene any of the information protection principles of the Act; and; 4. The application against both respondents is dismissed

1 This an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Act or the Privacy Act") for a review of the conduct of two public sector agencies in relation to their dealing with alleged personal information of the applicant. It is alleged the respondent contravened a number of information protection principles and compensation is sought along with other orders pursuant to section 55(2) of the Act. The respondents’ case is that there was no breach of the Act established and, if there was, exemptions from compliance applied.

2 I summarised the history and factual background to the application in GA v Department of Education and Training & NSW Police (No 2) [2005] NSWADT 10. I also made reference there to earlier decisions and interlocutory appeals in the matter at [2]. I will not repeat here that factual material.

3 In short, the applicant (GA) is a father of three sons living in Sydney (GB, GC & GD). In 2000, while his sons were at secondary school, the GA family took in the then girlfriend (GE) of one of his sons (GC). She lived with them for a time. The applicant pursued this litigation up until recently, primarily on her behalf, in connection with the release by the Principal of her former school of certain information and her allegedly unhappy dealings with the NSW Police just prior to her coming to stay with the applicant family. On 5 November 2000 the police attended the applicant’s home to interview GE, the then girlfriend of applicant GC. GE had been in a serious domestic dispute with her mother and the police had already been called to her home. On 10 November 2000, the police attended the Sydney school of GE and GC investigating the dispute and spoke with the Principal about GE and the applicant’s family. In response to a letter dated 17 October 2001 from Michael Donovan, the Chief Inspector of Police from the relevant area (while he was conducting an investigation into a complaint that had been made against certain police officers pursuant to Part 8A of the Police Act 1990(NSW)) on 23 October 2001, the Principal wrote to the police and disclosed certain information which the applicant claims is personal information.

4 On 1 July 2002, the applicant, wrote to the first respondent requesting an internal review pursuant to section 53 of the Privacy Act. He wrote on his own behalf, and on behalf of his sons and the girlfriend. The first respondent conducted the review on 28 October 2002. On 4 November 2002, applications were filed in the Tribunal on behalf of the applicant and his sons and the girlfriend. The applicant was nominated in each of the other applications as being the person sought to represent that person before the Tribunal. Ultimately, the other applications were each dismissed on 15 October 2004 on their own motion. The father, GA, is the sole remaining applicant.

5 Many of the matters the subject of the applicant’s original application have been finally determined or dismissed in earlier determinations in these proceedings. All that remains for determination is that which been remitted to me by the Appeal Panel (in GA v Department of Education and Training and NSW Police [2004] NSWADTAP 18 (25 May 2004)), namely, my reconsideration of “Point 4” of the letter from the Principal to the second respondent dated 23 October 2001. In Point 4, the Principal wrote:

4. The (applicant) family has had an unhappy relationship with the school including allegations to the Minister, which were subsequently shown to be false.

6 In my determination of 20 January 2005, I ruled that the “Point 4” issue would be heard without further evidence being led by the parties, as a full hearing had already occurred in 2003 in relation to it where each party appeared with legal representation.

The Hearing

7 At the Tribunal hearing on 3 March 2005, the applicant appeared for himself and the respondents each appeared by legal practitioners. I indicated to the parties my view that I regarded my decision of 20 January 2005 as interlocutory in nature in that the rights of the parties had not yet been finally determined in the proceedings (Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 (Gibbs CJ, Murphy & Wilson JJ)). I invited the parties to make any application they wished in respect of the rulings I had made on 20 January 2005.

8 The applicant made two applications, both which were opposed by the respondents.

9 The applicant sought to join his eldest son, GB, to the proceedings as a party. GB’s earlier (separate) proceedings were dismissed by the Tribunal on his own application on 11 October 2004. The application was made orally pursuant to section 67(4) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) which provides for joinder of parties by order of the Tribunal, either on its own motion or on the written application of a person if “the interests of the person” “are affected by the reviewable decision”. In support of the application, the applicant tendered a signed authority for the father to represent the son in the proceedings (Exhibit 1 to the application). However, the said authority made no mention of the joinder application and, as such, it did not constitute a “written application” in accordance with section 67(4) of the ADT Act. The application was accordingly refused by the Tribunal.

10 The applicant’s second application at the hearing was to seek to have the Tribunal “reinstate” his challenge to what was known as “Points 1, 2 & 5” of the Principal’s letter to the police dated 23 October 2001. In my ruling of 20 January 2005, I had determined that Points 1,2 & 5 could no longer be argued, given the withdrawal of all the other applicants. The applicant argued that, for a number of reasons, my previous ruling was erroneous. I gave an oral ruling at the hearing refusing the applicant’s second application. Essentially, the applicant was not able to satisfy me that the matters set out in Points 1, 2 & 5 constituted his “personal information” within the meaning of section 4 of the Privacy Act.

11 The evidence primarily relied on by the applicant in his second application as well as for his primary application (Point 4) was the oral evidence of the Principal of the secondary school given before the Tribunal on 30 April 2003. The applicant also referred to exhibit 5, being a report of an investigation by Chief Inspector MA Donovan dated 3 December 2001 into complaints made by, I presume, the applicant. The actual complaint or complaints was not put into evidence by any party. The applicant also sought to rely on additional material not previously tendered which he said he obtained on subpoena from the first respondent. After searches were made of Tribunal files, that material was not able to be found. It was said to comprise notes of a conversation between Ms Lois Diamond and the Principal undertaken before the first respondent’s internal review was prepared.

12 As it transpired, all that the applicant sought to prove with the interview notes was that the Principal’s opinion of the applicant was informed by the opinion of other public servants within the Department. That much was admitted by the second respondent for the purpose of the hearing. Accordingly, Ms Diamond’s notes were not required.

13 As to the Point 4 issue, the primary evidence relied on by all the parties comprised:

a) The letter from the Chief Inspector to the Principal dated 17 October 2001 (Annexure O to the affidavit of the Applicant sworn 22 May 2003);

b) The letter from the Principal to the Chief Inspector in response dated 23 October 2001(Annexure R to the affidavit of the Applicant sworn 22 May 2003); and

c) The affidavit of the Principal filed at the Tribunal on 17 April 2003 and his oral evidence of 30 April 2003.

14 The applicant referred me to the Chief Inspector’s report dated 3 December 2001 (in exhibit 5). He said that the particular issue that was the subject of these proceedings was identified on the first page of that report, at issue numbered 2 on the page. There were 5 broad issues stated there. The other issues did not relate at all to the matters before the Tribunal. Issue 2 provided that the complainant had alleged:

“Failure of Police to take appropriate AVO [apprehended violence order] action regarding a complaint of assault made by [GE, the girlfriend of GC] against her mother and the mother’s de-facto in November 2000.”

15 It was in this context that the Chief Inspector telephoned the Principal in October 2001 (some 11 months after the incident between the girlfriend and her mother) and sought information from him regarding the above complaint. The Principal stated in his affidavit that:

“On more than one occasion during that phone conversation, Chief Inspector Donovan said words to the following effect: “ I can assure you that any information you provide to me will be kept strictly confidential .” Following the conversation, I received a letter from Chief Inspector Donovan dated 17 October 2001 requesting information relating to the matters under investigation. In the context of Chief Inspector Donovan’s assurances of confidentiality, I believed that I was under an obligation to be frank and forthcoming with all the background information which I believed may be relevant to the matters under investigation.”

16 In the letter dated 17 October 2001 to the Principal, the Chief Inspector stated (omitting formal parts):

“Further to our telephone conversation this date I would appreciate your assistance in regard to a complaint inquiry I am conducting that has been levelled against Macquarie Fields officers, Holdem and Mitchell. The issue concerns the police response to an event involving [the girlfriend] that occurred between her and her mother on or about 5/11/00. I understand from the original police report that [the girlfriend] may have made a report of assault to the school on or about Monday 6/11/00 and as a matter of protocol DOCS were informed. Yourself and the school counsellor are said to have been involved in this process.

The subject of complaint revolves around the alleged inaction of police in response to her [the girlfriend’s] claim of assault on 5/11/00, a claim that is disputed by the officers as not having been reported to them. I would request written details of the following issues:

1. Did [the girlfriend] report an assault or other issue to school authorities on about 6/11.

2. Who was this report made to.

3. If a report of assault was made, did she exhibit any signs of said assault.

4. What action was taken by the school.

5. What contact did the school have with Consts. Holdem and Mitchell regarding this issue – (on or about 10/11/00 or on other date.)

6. Were you satisfied with the police response provided.

7. Were DOCS notified and if so, did they provide you with follow-up information.

8. Do you or the school counsellor form an opinion of any allegation made by [the girlfriend] (sic).

9. Do you consider that there has been any undue influence on [the girlfriend] by the family of her boyfriend.

I am providing a report for the information of the Ombudsman and I consider that any input from both yourself and the school counsellor would be particularly relevant. I will be implementing a secrecy provision in respect of any material received from the school and will recommend that it remain "in confidence". Please advise at your earliest convenience when any written response might be collected.”

17 In his letter dated 23 October 2001, the Principal provided answers to each of the 9 questions set out above. In his response to question 9, he stated “[The girlfriend] might well have been subject to undue influences by the [GA] family.” The Principal’s letter then went on to state:

Can I offer the following background information, which may or may not be relevant to your investigation.

“1. Mr and Mrs [parents of GE] separated some years ago. For several years [GE’s mother] has lived with her three children and a same sex partner. [GE] has resented this arrangement.

2. [GE] had developed an increasingly intimate relationship with [GC] against the wishes of her mother.

3. [GE] has received ongoing support and encouragement from the [applicant] family since she left home following the assault incident.

4. The [applicant] family has had an unhappy relationship with the school including allegations to the Minister, which were subsequently shown to be false.

5. Following a fire in the school in June 2001 one of the [applicant] boys was apprehended by a security guard when he was seen leaving the building after police and fire brigade had left. He was consequently charged by Macquarie Fields police. Following this incident, [the boy] left school by his parents’ choosing.

6. I have to say that the police response to the allegations by [the girlfriend] appeared to be even handed. The constables made the effort to interview me in the effort to establish the background to the alleged incident. In contrast, DOCS acted on [the girlfriend’s] behalf (which is their role) but without seeking background information from the school, which might have resulted in a different approach to the problem.”

18 As stated earlier in these reasons, only Point 4 above remains in issue in these proceedings. Earlier determinations have held that the information contained in the above letter was all information arising out of a complaint under Part 8A of the Police Act 1990 (NSW)(with the exception of Points 1, 2, 4 & 5 of the “background information”, and now, after the applicants have been reduced to the father alone, Point 4). It was therefore not “personal information” within the meaning of section 4(3)(h) of the Privacy Act and the Tribunal has no jurisdiction to deal with it.

19 In his oral evidence, the Principal was cross-examined by the applicant’s legal counsel. He was asked why he included the background information in his letter to the police. He said:

“When he telephoned me he said that he was going to conduct an investigation because a complaint had been made about the way that the Police dealt with the matter in the first place. So he said I have a series of nine questions that I would like you to answer and I would like you to provide any other background information that might assist me in coming to a conclusion on this complaint and that is what prompted me to write those things in there and can I say at this point that at the time of our conversation, he stressed several times that anything that I told him would be in confidence and I think even on that letter that he sent to me he indicated that there would be secrecy. I didn't intend any of that material to be published. It was simply my response to the inquiries of the Police.” (my emphasis)

20 When asked about what Point 4 related to, he said:

“[The applicant] alleged in a letter to the Minister that the students were taken to a swimming carnival and that his son had been made to take off his shirt and sit in the sun all day. Now, I knew that people on our staff wouldn't do that sort of thing so in response to a registered Ministerial letter I went and interviewed people that were running the swimming carnival and the PE staff and the sports organisers to find out if there was any truth in that allegation and after a fairly exhausting investigation, I wrote a report to my district superintendent who then forwarded it on to the Minister's office. In fact I've got here a copy of the results of my investigation which satisfied me 100% that the allegations were false.”

21 The applicant’s legal representative called for the said report and it was handed over by the Principal at the hearing. It was not tendered into evidence.

22 Upon further questioning on the issue, the Principal replied that it was "his judgment" that the allegations were shown to be false. He was questioned on the difference between his oral evidence, in which an opinion was said to have been formed by him that the allegations were shown to him to be false, and the actual wording of his letter to the Chief Inspector on this point which stated, as a matter of fact, that the allegations were "subsequently shown to be false." The Principal replied:

“It was shown to me to be false. My superintendent was satisfied with the outcome of the investigation. He would have then made a report to the Minister's office and [the applicant] would have received a letter from the Minister but I don't know what the content of that letter would have been.”

23 The Principal also admitted in his evidence that he was not aware of the provisions of the Privacy Act as at the time in October 2001 or how they applied to the school.

24 Once the Chief Inspector received the letter from the Principal dated 23 October 2001, together with all of the results of his investigations concerning the numerous other allegations against the police made by the complainant, he wrote his report dated 3 December 2001. In respect of the complaint relevant to these proceedings, he found that the “action taken by Police … resulting in an allegation of assault by [the girlfriend] was appropriate. No Adverse Finding”.

25 In the body of his report, he set out the factors that had influenced him in this determination (exhibit 5, at [21] & [22]). He did not refer at all to the Point 4 issue. He did refer to the suggestion made by the Principal that [the girlfriend] “might well have been subject to influence of the [applicant] family (sic) and the circumstances of the event cannot preclude the possibility”. He further stated that:

“[The applicant] has only the one-sided accounts of his son’s young girlfriend by which to gauge her family situation, a situation that obviously has deep seated resentments by [the girlfriend] attached to it. Unlike [the applicant’s] assertions, I find very little “clear” about this event and the allegations that have flowed from it.”

26 The parties made oral submission going to the Point 4 issue. The first respondent filed written submissions on 25 February 2005 and the second respondent filed written submissions on 3 March 2005 which were relied on.

27 The first respondent accepted the judgment of the Appeal Panel (in GA v Department of Education and Training and NSW Police [2004] NSWADTAP 18) as to Point 4 and conceded that there was a relevant “disclosure” of personal information that was not covered by the exemption in Part 8A of the Police Act 1990 (Information arising out of a complaint under Part 8A is not “personal information” pursuant to section 4(3)(h) of the Privacy Act). It admitted a contravention of section 18 of the Privacy Act. However, it was said that other exemptions applied.

28 The second respondent did not appear to accept the Appeal Panel’s ruling on the Point 4 issue, preferring to argue that upon close examination of the evidence set out above, the information provided to the police was plainly within the scope of the Part 8A investigation in that it was information “arising out” of the complaint. It was suggested that perhaps the Appeal Panel did not have all of the relevant evidence before it when it made its decision in the issue. If it was before it, it was suggested that perhaps the Appeal Panel was not taken to it in any relevant detail. In any event, it was argued that a number of other exemptions under the Privacy Act applied. It was also argued, somewhat faintly, that the application should be dismissed as being frivolous within the meaning of section 73(5)(h) of the ADT Act.

29 At the hearing, the applicant submitted that the first respondent breached sections 12 (a) & (c) of the Privacy Act. Section 12 provides:

“12 Retention and security of personal information

A public sector agency that holds personal information must ensure:

(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.”

30 During the course of the conduct of these proceedings, there was no meaningful examination by the parties of the length of time for which the Point 4 information was kept by the first respondent or the purposes for which it may lawfully be used. In addition, no evidence was tendered relating to the measures taken, if any, to protect the said information. Further, the relevant information was within the personal knowledge and experience of the Principal. In these circumstances, the Tribunal is unable to make a determination that section 12 (a) or (c) was contravened.

31 The applicant also submitted that section 16 of the Privacy Act was contravened by the first respondent. Section 16 provides:

“16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.” (my emphasis)

32 It was submitted that the personal information was not checked by the Principal before its use in the present case. It was said that the information was not relevant to the inquiry by the Chief Inspector and, it was not accurate. The applicant suggested that the information should have first been run past somebody else in the Department before it was delivered to the police.

33 Again, these matters were not the subject of any significant evidence in the proceedings. The applicant had, for example, every opportunity to tender the Ministerial report undertaken by the Principal in connection with the Point 4 issue relating to the swimming carnival incident and he did not tender it or ask relevant questions of the Principal that would lay the necessary foundation for an alleged contravention of section 16. The report related to a single incident that occurred in the past that was investigated by the Principal personally. The matter had closed, apparently some time, perhaps years, before the Tribunal hearing. The Principal’s evidence regarding the circumstances in which he reported the incident to the police was that he was assured (at least orally) by the Chief Inspector that it would be received in confidence. In those circumstances, I find it would have been reasonable in the circumstances for him not to take further steps before seeking to use the information in the fashion he did. However, on the state of the evidence, the Tribunal is unable to make any finding that section 16 of the Privacy Act was contravened.

34 The applicant submitted that the hearing that the first respondent contravened section 17 of the Privacy Act. Section 17 provides:

“17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.”

35 The applicant argued that the information was collected by the Principal in the course of his investigation relating to the swimming carnival incident. He did not submit what the alleged purpose of the collection was.

36 I find that the purpose for which the information was collected was so as to inform the responsible Minister about investigations relating to issues arising out of a complaint by the applicant and also to inform the applicant himself about the outcome of the said investigations. It was also plainly created for the purpose of proper internal school administration regarding the conduct of its affairs.

37 The first respondent submitted that the Principal's report contained personal information that was relevantly disclosed for a purpose other than the purpose for which it was collected, and that paragraphs (a), (b) & (c) of section 17 did not apply here. Such “disclosure” did not constitute “use” for the purposes of section 17 of the Act. Given the context of the information privacy principles as a whole, it was said that “use” and “disclosure” are separate concepts and that what occurred here was plainly a disclosure only and section 18 should be the focus of attention. In the alternative, it was argued that the following exemptions to section 17 applied: section 23(4) (that the “use” was “reasonably necessary for law enforcement purposes”); section 25(b) (non-compliance permitted, implied or reasonably contemplated under an Act or other law); and a Direction made by the Privacy Commissioner pursuant to section 41 (exempting agencies from complying with principles and codes) (exhibits 6 & 7).

38 I was referred to the Tribunal’s decision in MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 where the meaning of the word “use” was considered in the context of section 16 & 17 of the Act. The Tribunal there determined (at [157] to [163]) that the word meant more than to simply access the information or to view it. It was further considered that the words “use” and “disclosure” are intended in the Act to refer to different functions of an agency. While not an absolute distinction, “use” relates to internal uses and “disclosure” related to external actions. I accept what is said in those passages by the Tribunal. No-one submitted to me that they were incorrect. In particular, I accept the definition of “use” in relation to sections 16, 17 and 18 of the Act as set out by the Deputy President of the Tribunal in FM v Vice-Chancellor, Macquarie University [2003] NSWADT 78 at [42], namely:

“The plain and ordinary meaning of the word “use” in this context is “to avail oneself of; apply to one’s own purposes” (the Macquarie Dictionary , 3rd edition, The Macquarie Library).” (See also JD v Director General, NSW Department of Health (No.2) [2004] NSWADT 227 at [55] to [62].)

39 In the present case, the Principal merely made a reference to the Point 4 issue in disclosing it to the police. He did not relevantly use the information for his own, or the school’s own purposes on that occasion (FM v Vice-Chancellor, Macquarie University [2003] NSWADT 78 at [42] – not challenged on appeal in Vice Chancellor, Macquarie University v FM [2003] NSWADTAP 43).

40 I am not satisfied the applicant has made out a case for a contravention of section 17.

41 As to the second respondent, the applicant submitted the police contravened sections 8(1)(a) & (b) of the Act, which provide:

“8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b) the collection of the information is reasonably necessary for that purpose.”

42 The applicant argued that in receiving or collecting the Point 4 information from the Principal, the police did not have a lawful purpose that was directly related to the Part 8A investigation and that the said collection was not reasonably necessary for the purpose of the investigation as it was not relevant to it.

43 The evidence establishes that the Chief Inspector sought answers to nine specific questions in his letter. He also sought by telephone the provision of "any other background information". In the letter itself, he further sought "any input from both yourself and the school counsellor". In these requests, the Chief Inspector was not seeking any information that was not relevant to a lawful investigation of the complaint. The nature of the complaint itself was identified clearly in the first paragraph of the Chief Inspector's letter. If the Principal chose to volunteer information such as that which is contained in Point 4, I find that it was not caused by or collected by the conduct of the Chief Inspector. In the words of the Appeal Panel, such information was "gratuitous information" (GA v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [55]). The Principal himself conceded in his letter to the police that the information in Point 4 "may or may not be relevant” to the police investigation. It was plainly not directly relevant.

44 Accordingly, the second respondent cannot be properly said to have "collected" the information within the meaning of section 8 of the Privacy Act. It was unsolicited information received by the police. Section 4(5) of the Privacy Act provides:

“(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.”

45 The meaning of “unsolicited” was considered in Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43 at [86] in the following terms:

“[I]t refers to information that an agency finds itself receiving (primary meaning, Macquarie Dictionary, ‘not asked for’). A public sector agency is not bound by the Collection principles in that situation as it had no opportunity to define or set the parameters under which it was received.”

46 A finding of “unsolicited” personal information and its impact on the information protection principles was considered recently by the Tribunal in MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 at [166] to [172].

47 A contravention of section 8 is not made out.

48 Against the second respondent, the applicant also alleged there was a breach of section 9(a) of the Act. Section 9 provides:

“9 Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(a) the individual has authorised collection of the information from someone else, or

(b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.”

49 The applicant argued that the second respondent should have "collected" the information from the applicant himself.

50 As I have already determined, there was no relevant collection in the present case. The second respondent merely received unsolicited information provided by an enthusiastic Principal of a public high school that was not directly relevant to the second respondent's investigation. In the circumstances, there was no duty pursuant to section 9 for the second respondent to seek to collect the information directly from the applicant. There is no contravention of section 9.

51 The applicant submitted that the second respondent contravened section 10 of the Privacy Act. Section 10 provides:

“10 Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(a) the fact that the information is being collected,

(b) the purposes for which the information is being collected,

(c) the intended recipients of the information,

(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e) the existence of any right of access to, and correction of, the information,

(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.”

52 It was argued that the agency took no steps at all to ensure that paragraphs (a) to (f) were complied with before or after the collection of the information contained in Point 4.

53 As I have already ruled, the second respondent did not relevantly "collect" personal information from an individual that related to the applicant. The information in Point 4 is appropriately characterised as unsolicited information provided to the second respondent in the general context of (but not arising from) an investigation pursuant to Part 8A of the Police Act 1990. By operation of section 4(5) of the Act, the provision does not apply and no contravention is made out.

54 Finally, the applicant submitted that the second respondent breached section 16 of the Act, which is set out above.

55 It was argued that the second respondent relevantly “held” and then “used” the Point 4 information in connection with the making of the report of the Chief Inspector without the Chief Inspector taking reasonable steps to ensure the information was relevant, accurate, up to date and not misleading. On any view of the meaning of the word “use” (see MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 at [157] & [162]) there is no evidence that the Chief Inspector relevantly used the Point 4 information in connection with making his investigation report. There is no mention of it in his report and it the plain inference from reading the report as a whole and the passages I identified earlier in these reasons is that he did not use that paragraph. Accordingly, I find that he did not use the Point 4 information at all.

56 While other parts of the Principal’s letter were plainly used by the Chief Inspector, in that, for example, he expressly referred to them, the Point 4 part was not only largely irrelevant, it would have been entirely unhelpful to him in any factual investigation. It was couched in vague, emotive, general and unparticularised terms. If the Chief Inspector was to have placed any weight on it at all, he would have come back to the Principal and sought information as to what was the reason for the alleged “unhappy relationship” between the applicant family and the school and what was the nature of the alleged “false allegations” that were made to the Minister (of which, as it transpires, there was only one). None of this occurred on the evidence. A plain reading of the passages of the Chief Inspector’s report set out above in their proper context show that the second respondent did not relevantly use the Point 4 information at all.

57 To the extent that it might be said that the applicant believes that the Point 4 information somehow tainted or spoiled the police view of the complaint made by the applicant – and that therefore made it harder for the police to treat seriously his many complaints, that view should be balanced against the more positive information regarding the applicant family that was also contained in the Principal’s letter. For example, at Point 3 of the background information, the Principal wrote “[the girlfriend] has received ongoing support and encouragement from the [applicant] family since she left home following the assault incident”. In any event, the entire police investigation on this subject did not relate to the applicant family as such. It related to the girlfriend, the investigator’s assessment of her credibility and police action, alleged inaction or the duties they owed, if any, towards her.

58 I find that the allegation that the second respondent contravened section 16 of the Act is not made out.

59 As all of the alleged contraventions of the Act by the second respondent are not made out, the Tribunal will dismiss the applicant’s proceedings against that agency.

Submissions of the Second Respondent as to Part 8A of the Police Act 1990

60 In very detailed written submissions, the second respondent argued that a number of exemptions existed in relation to the alleged breached of the Act. Given the findings I have made, I do not propose to deal with them except the Part 8A submission.

61 It was submitted that the Appeal Panel did not appreciate or did not have all the evidence before it on the substantive appeal going to the Part 8A exemption, as I mentioned earlier in these reasons. Therefore, the “generous” exemption in the Act was said to apply. There was no evidence before me at the hearing as to exactly what evidence was placed before the Appeal Panel. I can only presume that it had access to the primary evidence tendered in the 2003 hearings before me in these proceedings and that the parties could have brought to the Appeal Panel’s attention to all of the evidence in their submissions. In this circumstance, I am unwilling to “re-open”, as it were, the Appeal Panel’s firm finding that Point 4 of the Principal’s letter was not covered by the Part 8A exemption.

62 Submissions were also made concerning other exemptions contained in Act. Section 25 (Exemptions where non-compliance is lawfully authorised or required) was relied upon so as to enable an “effective” police investigation to be carried out in relation to allegations of “neglect of duty” against its police officers. Section 24(1) & (4) (Exemptions relating to investigative agencies) was relied upon. It was submitted that as the Chief Inspector was preparing a report for the Ombudsman’s Office, the investigative exemption extended to the police and the first respondent. Section 23 (Exemptions relating to law enforcement and related matters) was also relied upon. The second respondent also adopted the submissions of the first respondent going to similar exemptions. Given my findings on collection and use, I do not propose to deal with them.

Exemptions claimed by the First Respondent

63 The first respondent admitted that a contravention of section 18 occurred in the present case concerning the Point 4 disclosure. However, it was argued that one or more exceptions applied and that therefore there was no breach of the Act. Section 18 provides:

“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.”

64 It was argued that the following exemptions applied: Section 23(5)(a) & (b) (Exemptions relating to law enforcement and related matters – relating to public sector agencies); Section 23(5)(d)(ii) (reasonably necessary to investigate an offence); Section 25 (Exemptions where non-compliance is lawfully authorised or required); and, Section 41 (Exempting agencies from complying with principles and codes).

65 Section 23 of the Privacy Act relevantly provides:

“23 Exemptions relating to law enforcement and related matters

…

(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.”

66 There is no doubt that the first respondent is a “public sector agency” within the definition in section 3(1) of the Act. The expression “law enforcement agency” is defined in section 3(1) to include the State and Federal police and a number of other specified crime and prosecuting authorities.

67 It was submitted by the first respondent that section 23(5)(a) applied to the present. The first respondent was not required to comply with section 18 as the disclosure of the information “concerned” “law enforcement purposes”.

68 It was submitted that the law enforcement purpose here was the enforcement of the Police Act 1990. Investigations under Part 8A of the Act might lead the Police Commissioner to take disciplinary action against the two officers who were the subject of the investigation (namely, the two officers who visited the girlfriend at her mother’s home and at the applicant’s home in November 2000) pursuant to Part 9 Division 1 of the Police Act 1990. In addition, enforcement of the Police Act by way of undertaking of a Part 8A investigation might well lead to the laying of criminal charges against those officers for, for example, neglect of duty pursuant to section 201 of the Police Act.

69 The Tribunal was invited to adopt the meaning of the expression “law enforcement” as determined by the Tribunal in JD v Director General, NSW Department of Health (No.2) [2004] NSWADT 227 at [79].

70 In that case, the Tribunal was concerned, inter alia, with an alleged contravention of section 18 of the Act. A Departmental investigation report into alleged bad conduct of a medical practitioner involving use of narcotics was delivered to the NSW Medical Board for disciplinary purposes under the Medical Practice Act 1992 (NSW) and for possible breaches of the Poisons and Therapeutic Goods Act 1966 (NSW). The Tribunal held that the section 23(5) exemption did not apply (as the Medical Board was not a “law enforcement agency”) and determined the matter by reference to a section 41 direction directed to the agency by the Privacy Commissioner under the Act. Section 41makes provision for the Privacy Commissioner to make, with the approval of the Minister, a written direction that an agency is not required to comply with one or more of the information protection principles set out in sections 8 to 19 of the Act or a privacy code of practice. The particular direction provided, inter alia, for “exchanges of information which are reasonably necessary for law enforcement purposes and are not covered by an exemption in Part 2 Division 3 of the Act [which included section 23(5)].” The Tribunal determined (at [79]):

“In my opinion, the term “law enforcement” should be given its ordinary meaning and it should not be narrowly construed. The [FOI] decisions relied on by the Privacy Commissioner are in my opinion of no assistance. I am also of the view that disciplinary action, pursuant to an Act of Parliament, for breaches of professional standards comes within the term “law enforcement”.”

71 Notwithstanding the Tribunal was dealing with the expression in a different context, I accept this definition of the expression and I would adopt it and apply it to the provision relied upon by the first respondent, section 23(5)(a) of the Act.

72 In the present case, the Chief Inspector was engaged in an investigation relating to numerous complaints made by the applicant alleging police misconduct and possible contraventions of the disciplinary and, more remotely, the criminal provisions of the Police Act 1990. I accept that the sole purpose of the provision of the Point 4 information by the Principal was in order for the Principal to assist (rightly or wrongly) that inquiry. However, as I have found, the Point 4 information provided was not directly relevant and the Chief Inspector did not rely on it at all.

73 It should be noted that the test in section 23(5)(a) of the Act is directed to the “purpose” of the disclosure. The statutory test is not directed to the quality or relevance of the information. The test is in contrast to other law enforcement tests in the Act, for example in section 23(4) or section 23(5)(d) which rely on a finding based on “reasonably necessary” or “reasonable belief”. None of those tests are applicable here.

74 On the section 23(5)(a) test, determining the purpose for which information was provided is a factual matter. The purpose in the present case was plain. It was to assist a police investigation. I see no reason to read down or narrowly construe the terms of the section. If the disclosure was made for the purposes of law enforcement, that will suffice to attract the exemption.

75 Accordingly, I find that the Point 4 information concerned information provided for law enforcement purposes within the meaning of section 23(5)(a) of the Act and the exemption applies. Therefore, the first respondent is not required to comply with section 18 of the Act and the applicant’s application to the Tribunal should be dismissed.

76 I do not need to consider the first respondent’s alternative submissions concerning the application of other arguable exemptions.

77 The Tribunal determines:

1. The first respondent was not required to comply with section 18 of the Privacy and Personal Information Protection Act 1998;

2. The first respondent did not contravene any of the information protection principles of the Act;

3. The second respondent did not contravene any of the information protection principles of the Act; and

4. The application against both respondents is dismissed.