BYW v Commissioner of Police, NSW Police Force

Introduction

1. This is an appeal from a decision of the Tribunal (S Montgomery, Senior Member) published on 30 April 2014: Pursuant to Section 55(2) of the Privacy and Personal Information Protection Act 1998 the Tribunal determines not to take any action on the matter.
2. The issues before the Tribunal concerned personal information regarding the appellant allegedly held by the respondent. The issues were whether the information was protected as required by s12 of the Privacy and Personal Information Protection Act (PPIP Act) and whether the information was disclosed by the respondent to a third party contrary to section 18.
3. Before the Tribunal it was established that what the appellant claims was personal information concerning himself was disclosed by a third party in letters to the appellants solicitors. Although from its nature the relevant personal information was likely to have been held amongst its records by the respondent it is obvious that the same information could have been in the possession of other unrelated persons. Indeed before the Tribunal there was evidence that a Mr Martin Watts a solicitor then acting for the respondent had a telephone conversation with the third party who said that he had received the information from a journalist and not from the respondent. Mr Watts made a note of the conversation which was also in evidence.
4. The Tribunal below after careful analysis of the facts and principles of law involved concluded its reasons with these paragraphs. 64. Put at its highest, the Applicant's case is that Mr Watts' Handwritten Notes may be inaccurate. They may have inaccurately recorded the information provided to Mr Watts by the third party or the information provided to Mr Watts by the third party may have been inaccurate. If either of those scenarios existed, then the question arises as to what inference should be drawn from it. 65. The Applicant submits that the Tribunal should draw an inference against the Respondent. He submits that the correct inference is that the personal information was disclosed to the third party by the NSWPF. . 66. I agree with the Respondent that the inference should only be drawn if there is evidence to show that it is more likely than not the way, or one of the ways, in which the information was disclosed. I am unable to form that conclusion on the material before me. 67. I accept that it is possible that the personal information was disclosed to the third party by an officer or officers of the NSWPF. However, that is only one of several possibilities. In my view the evidence does not support the finding that it is more likely than not that the personal information was disclosed by the NSWPF. 68. As was noted in NS v Commissioner, Department of Corrective Services, if the Tribunal is left in a state of uncertainty in relation to a fact in issue, that fact should be decided against the Applicant. 69. Even if I were able to make the finding that it is more likely than not that the personal information was disclosed by an officer of the NSWPF, I am unable to conclude that the disclosure should be characterised as disclosure by the Respondent or conduct of the Respondent. Where disclosure of information was for a purpose extraneous to any purpose of the agency, it should not be characterised as conduct of the agency: Director-General, Department of Education and Training v MT [2006] NSWCA 270 at paragraph [43]. 70. I have no basis on which I could conclude that an officer of the Respondent disclosed the personal information or, if that had been the case, that the disclosure was authorised by the NSWPF. In my view, if an officer of the Respondent had disclosed the personal information it is more likely than not that the officer was on a frolic of their own. 71. Similarly, I have no basis on which I could conclude that the Respondent had not taken all reasonable security safeguards to prevent disclosure of the personal information. 72. That being the case, I am not satisfied that the Respondent has contravened the PPIP Act as alleged in the Application