NZ v Commissioner of Police, NSW Police

[2007] NSWADT 263

CITATION:	NZ v Commissioner of Police, NSW Police [2007] NSWADT 263
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	073134
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	25 October 2007
DATE OF DECISION:	12 November 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	NZ v Department of Housing [2005] NSWADT 234 NZ v Commissioner of Police, NSW Police [2007] NSWADT 132 HW v Commissioner of Police, NSW Police Service and Anor [2003] NSWADT 214 NZ v Commissioner of Police, NSW Police [2006] NSWADT 142 GA v Commissioner of Police, NSW Police [2005] NSWADTAP 38 NZ v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 57 NZ v Commissioner of Police, NSW Police [2006] NSWADT 332 NZ v Commissioner of Police, NSW Police [2007] NSWADT 86
REPRESENTATION:	In Person F Gaha, solicitor
ORDERS:	The Tribunal has no jurisdiction in this matter.

REASONS FOR DECISION

1 On 8 May 2007, the Tribunal received an application from NZ for the review of conduct of the NSW Police, whom, NZ claims, have ignored her complaints alleging breaches of her rights under the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’) and the Health Records and Information Privacy Act 2002 (‘the HRIP Act’). The Commissioner contends the Tribunal has no jurisdiction in this matter.

Background

2 In NZ’s application to the Tribunal, she states that the NSW Police have ignored her complaints made on 12 December 2006 and 14 March 2007. She claims that the NSW Police have for many years contravened information privacy principles (‘IPPs’) and health privacy principles (‘HPPs’) by storing, using, accessing, and releasing false and inaccurate information about her contained in false, fraudulent and forged letters, and by harassing her. NZ seeks a variety of orders from the Tribunal in relation to the alleged conduct, including damages by way of compensation for the loss or damage suffered.

3 NZ attached copies of her letters sent to the NSW Minister for Police:

(1) a letter dated 12 December 2006 claiming a breach of her rights under the PPIP Act, referring to false accusations made against her in documents held by the NSW Police,

(2) two letters dated 12 December 2006 claiming a breach of her rights under the HRIP Act in relation to medical information held by the NSW Police about her “psychiatric disability”, and

(3) a letter dated 14 March 2007 noting that she had received no response to her letters dated 12 December 2006 and requesting an internal review in relation to the alleged conduct.

4 NZ also attached copies of entries concerning her on the Computerised Operational Policing System (‘COPS’), stating that she “may suffer from a mental illness” and in relation to Apprehended Violence Order (‘AVO’) proceedings in Waverley Local Court involving NZ and a neighbour and a relative of NZ’s. Further documents attached include a letter from NZ’s treating psychologist dated 9 September 2004 referring to the “severe agoraphobia, social phobia and panic attacks” from which NZ suffers.

5 The psychological condition suffered by NZ prevents her from leaving her home. Any Tribunal proceedings involving NZ are, therefore, conducted by telephone, but she prefers these to be of short duration because she becomes upset easily. The Tribunal conducted conferences with Mr Gaha, representing the Commissioner, and NZ, participating by telephone, on 8 June 2007, 11 July 2007, 20 August 2007 and 13 September 2007. At the conference on 8 June 2007, NZ informed the Tribunal that she was seeking Legal Aid in relation to these proceedings. By letter dated 22 June 2007, Mr Gaha confirmed his application, made orally on 8 June 2007, that NZ’s application be dismissed for lack of jurisdiction. On 11 July 2007 and 20 August 2007, the Tribunal adjourned proceedings pending an outcome to NZ’s application for Legal Aid. NZ subsequently informed the Tribunal that her application for Legal Aid had been refused. At the telephone conference on 13 September 2007, the parties agreed that I should determine the preliminary issue of whether the Tribunal has jurisdiction in this matter “on the papers” and I issued directions for the filing of their written submissions on this issue.

The Commissioner’s Submissions

6 In eight pages of submissions dated 4 October 2007, the Commissioner contends that NZ first applied to the Tribunal in relation to her complaints against the NSW Police in July 2004 and that these complaints have been the subject of consideration by the Tribunal on several previous occasions. In relation to NZ’s current application, the Commissioner states that it appears NZ believes the NSW Police are holding and using false information about her without her knowledge or consent, including acting on that false information to her detriment, and that police officers attending her home in response to complaints of a breach of AVOs breached her privacy. The Commissioner submits NZ has failed to identify any specific conduct by the NSW Police with sufficient clarity or particularity which might amount to a breach of a relevant IPP or other transgression of the privacy legislation. NZ’s application to the Tribunal is not, therefore, a competent application: NZ v Department of Housing [2005] NSWADT 234, at par 9; see also NZ v Commissioner of Police, NSW Police [2007] NSWADT 132, at para 9.

7 The Commissioner notes that s 27 of the PPIP Act grants the NSW Police a broad exemption from complying with the IPPs except “in connection with the exercise of their administrative and educative functions” (s 27(2)). The Commissioner submits that where the use of personal information is for a core law enforcement function, the IPPs do not apply: HW v Commissioner of Police, NSW Police Service and Anor [2003] NSWADT 214. The Commissioner submits that if NZ’s allegations are capable of being sustained, then the holding, storage or use of that information falls within the exemption in s 27 because it relates to the NSW Police’s core functions.

8 The Commissioner also submits the Tribunal has no jurisdiction to entertain NZ’s application because she failed to lodge an application for internal review as required by s 53 of the PPIP Act.

9 The Commissioner submits further that NZ’s application is misconceived in so far as it appears to canvass issues concerning her privacy or the privacy of her personal communications or behaviour that do not fall within the jurisdiction of the Tribunal. Moreover, the Commissioner submits some of the issues raised by NZ have already been determined in the previous Tribunal decision in NZ v Commissioner of Police, NSW Police [2006] NSWADT 142.

NZ’s Submissions

10 NZ’s submissions dated 9 October 2007 comprise 51 pages with 58 pages of accompanying documents. The Tribunal received a further three page letter plus 47 pages of accompanying documents on 22 October 2007. This is in addition to approximately 200 pages of documents already provided to the Tribunal by NZ in relation to this matter.

11 NZ contends that her letters to the Minister for Police dated 12 December 2006 and 14 March 2007 are applications for internal review meeting the requirements of s 53 of the PPIP Act. Moreover, her letters have identified various documents held by the NSW Police concerning her and her son in relation to the AVO proceedings which are false or fraudulent or have been forged. The Police have also abused her and her son’s privacy rights by coming to her home to question them about various allegations. Further, the Police have mistakenly used her son’s name in relation to an allegation of forged cheques when, in fact, these allegations related to NZ’s brother.

12 With regard to s 27 of the PPIP Act, NZ submits this exemption does not apply because “law enforcement is one thing and not what the Police do for me and my son” (p 16), and especially when the Police use her and her son’s personal information unlawfully, have failed to prevent property damage and have allowed her neighbour to commit “fraud and crimes in her false statements” (p 17). NZ states that due to her illness, she places special reliance on the NSW Police but they have not afforded her proper protection, instead allowing others to make false allegations against her with the consequence that she has suffered “Police privacy breach and crime stays in place for me to my good name”. Thus, NZ contends, “this means privacy breach on part of police since it is their duty under the Law enforcement to remove crime parties from my good name” (p 47).

13 NZ submits that past decisions by the Tribunal on similar issues are not relevant to the present proceedings. She points to her mental illness, detailed in various medical reports, and submits that she has sufficiently identified the conduct that she alleges constitutes the breaches of her privacy. Not to recognise this would be an injustice (pp 19-20):

“So, I have done my part for long time not rights ever under this Act that is all that is relevant.

I cannot be tormented abuse, victimised and suffer the Police privacy all the time that is bad for my mental, emotional and physical health and my family.”

14 NZ canvasses various allegations concerning her disputes with neighbours and relatives at some length, referring to various documents, some of which are appended with NZ’s highlighting and handwritten comments. Much of this material appears not to be relevant to the current proceedings except by way of background. Because of the presentation and length of this material, it is extremely difficult to distill from this what is relevant. The accompanying documents with NZ’s letter dated 22 October 2007 also relate to various disputes NZ has had with her neighbours and relatives over a number of years and, in particular, to AVO proceedings brought by or against NZ in which the NSW Police have (necessarily) been involved.

Discussion

15 The PPIP Act provides for the protection of personal information and the privacy of individuals by reference to a series of IPPs, set out in Part 2, which public sector agencies, defined in s 3(1) to include the NSW Police, are required to observe in the handling of personal information. ‘Personal information’ is defined in s 4 to include “information or an opinion ... about an individual”, including information or an opinion forming part of a database.

16 Part 5 of the PPIP Act provides for the review of conduct or alleged conduct including the contravention by a public sector agency of IPPs that apply to the agency (s 52(1)(a)). Section 53 provides for a person who is aggrieved by the conduct of a public sector agency to apply to the agency for a review of that conduct. Section 53(6) provides that a public sector agency must complete the review as soon as is reasonably practicable in the circumstances and, that if not completed within 60 days from recept of the application, the applicant is entitled to apply to the Tribunal for a review of the conduct concerned. Section 55 provides for review of the conduct by the Tribunal.

17 Section 11 of the HRIP Act requires every organisation that is a health service provider or that collects, holds or uses ‘health information’ to comply with the HPPs set out in Schedule 1, and not to do any thing, or engage in any practice, that contravenes an HPP. ‘Health information’ is defined in s 6 as including “(a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual”. ‘Personal information’ is defined in s 5 as meaning “information or an opinion ... about an individual”. Section 9 provides that health information is ‘held’ by an organisation if the organisation is in possession or control of the information, or is in the possession or control of a person employed or engaged by the organisation in the course of such employment or engagement, or in the case of a public sector agency, the information is contained in a State record for which the agency is responsible. Section 21 provides that the contravention by a public sector agency of an HPP is conduct to which Part 5 of the PPIP Act applies.

18 In GA v Commissioner of Police, NSW Police [2005] NSWADTAP 38, at par 10, the Appeal Panel said of applications to the Tribunal under s 55 of the PPIP Act:

“The making of a competent application for review is an essential preliminary to the Tribunal exercising jurisdiction. The application can only be competent if the applicant has previously made a valid application for internal review. The respondent can properly object to jurisdiction on the basis that there has not been an application for internal review. Accordingly, when examining the circumstances relating to the making of the application for internal review, the Tribunal is engaged in the exercise of ascertaining its jurisdiction.”
19 In that case, the Appeal Panel said, at para 14, that the application to the agency for internal review pursuant to s 53 must be sufficient to “ to identify that, at the least, conduct involving the disclosure of information has been put in issue”. In NZ v Department of Housing [2005] NSWADT 234, at para 9, the President of the Tribunal, O’Connor DCJ, emphasised that that “there must be a connection between the conduct identified and some possible contravention or breach of one of the information privacy principles”. He said that while it is not necessary for an applicant for internal review to be particularly precise about what IPP is in issue, there must be sufficient clarity to indicate a possible contravention or breach. Having considered the facts of the case, the President was not satisfied that there was sufficient clarity and, consequently, found that there had not been a competent application for internal review. Thus, the Tribunal was without jurisdiction and the application to the Tribunal was dismissed. In NZ v Commissioner of Police, NSW Police [2007] NSWADT 132, at para 9, Higgins JM noted that the “alleged conduct must be conduct which is alleged to contravene one or more of the IPPs, namely that the respondent public sector agency’s conduct in collecting, storing, processing, using or disclosing personal information of the review applicant”.

20 As best I can ascertain, NZ’s submissions allege that the NSW Police are storing inaccurate personal information about her and her son and that they have made unauthorised disclosures of this information to NZ’s neighbour and relatives, thereby assisting those persons in AVO proceedings. NZ also submits the Police have harassed her by attending her home and asking her questions about various matters in dispute with her neighbour and relatives.

21 The Commissioner submits, as a preliminary issue, that the Tribunal has no jurisdiction in this matter in so far as NZ failed to lodge an application for internal review. The Commissioner submits further that the letters identified by NZ as being applications for internal review are not competent applications, and, additionally, refer to alleged conduct that does not fall within the scope of the PPIP Act or to conduct which has been the subject of previous Tribunal decisions. Moreover, the Commissioner contends that the NSW Police is not required to comply with the IPPs in relation to its core functions (as opposed its administrative and educative functions) to which NZ’s applications appear to relate.

22 NZ contends that her letters to the Minister for Police dated 12 December 2006 (one of the three letters of this date appears to refer to a complaint under the PPIP Act and two of these letters appear to refer to complaints under the HRIP Act) and 14 March 2007 (which appears to refer to NZ’s complaints under the HRIP Act) are applications for internal review. Although the Commissioner appears to contend that these letters were not received, I am satisfied that at least some of the letters were received.

23 The question which then arises is whether these applications were competent applications for internal review under s 53 of the PPIP Act. NZ has provided several hundred pages of documents about her complaints that her privacy has been breached. She has also provided over 51 pages of submissions on the preliminary issue of whether the Tribunal has jurisdiction in this matter. Despite this, it is difficult to discern how the facts alleged amount to a breach of the provisions of the PPIP Act or the HRIP Act.

24 Moreover, it appears that much of the factual material encompassed by the documents and submissions provided by NZ has already been the subject of determinations by the Tribunal: see my decision in NZ v Commissioner of Police, NSW Police [2006] NSWADT 142, affirmed by the Appeal Panel in NZ v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 57; see also NZ v Commissioner of Police, NSW Police [2006] NSWADT 332 and NZ v Commissioner of Police, NSW Police [2007] NSWADT 86 in relation to NZ’s applications under the FOI Act which appear to overlap with her current complaints of breaches of her privacy and the material provided by NZ in relation to the current application - for example, her apparent request that the Police delete or amend allegedly false or inaccurate entries on COPS or other allegedly false or inaccurate information held by them concerning NZ (as to which see s 30 of the Freedom of Information Act 1989 (‘the FOI Act’).

25 One of the difficulties characterising NZ’s applications under the PPIP Act and the FOI Act is the wide-ranging nature of the applications, canvassing a mass of factual information and documents, with very little relevant focus. In the present case, I am not satisfied that NZ’s applications for internal review were competent applications under s 53 of the PPIP Act because they did not sufficiently particularise with the necessary clarity the breaches of the PPIP Act or HRIP Act alleged by NZ to enable the Police to investigate her complaints. The consequence of this is that the Tribunal does not have jurisdiction under s 55 of the Act.

26 I note that the Commissioner did not contend as a preliminary issue that the matter should be dismissed under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 on the ground that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”. In my view, there is no doubt that NZ genuinely believes that her privacy has been breached. Her plight is exacerbated by her illness and her inability to discuss the issues by telephone for more than a relatively short time without getting upset. It was for this reason that NZ requested that this preliminary issue should be dealt ‘on the papers’ with the benefit of written submissions by the parties.

27 I also note that on a number of occasions NZ refers to alleged breaches of her son’s privacy. Her son has not lodged any application with the Tribunal in relation to the facts alleged by NZ and is not a party to these proceedings. The Tribunal therefore has no jurisdiction in relation to NZ’s complaint that her son’s privacy has been breached by the NSW Police.

28 Finally, I note that the Commissioner contended that, pursuant to s 27 of the PPIP Act, the NSW Police are exempt from complying with relevant IPPs where the use of personal information is for a core law enforcement function, rather than in connection with the exercise of their administrative and educative functions. While I acknowledge that this is a correct statement of the law, this is not an issue which it is necessary for me to address here, my having found that the Tribunal is without jurisdiction. This is an issue that would ordinarily be considered at the substantive hearing in a matter.

Decision

The Tribunal has no jurisdiction in this matter.