On 4 October 2015 DKB says he was assaulted near the door to his unit in Bondi. The assailant came from the next-door unit. Police attended.
Police were given differing versions of the event by DKB and the other man involved, with each saying the other was responsible for the assault. A COPS Event Ref No 61859881 was created by the investigating detective.
DKB subsequently applied for Victims Compensation under the Victims Rights and Support Act 2013 (NSW). In considering DKB's application the Commissioner for Victims Rights on 15 October 2015 (11 days after the event) wrote to the Local Area Commander seeking information. The letter said:
Victims Services has received COPS Event E61859881 from Police Operational Information Agency in relation to the above incident.
In terms of the arrangement made with NSW Police and the Commissioner of Victims Rights power under Part 3, Division 1, Section 12 of the Victims Rights and Support Act 2013, could you please provide the following additional information in relation to the above incident:
Contributory Behaviour (S.44)
Please provide us with a brief report outlining the current status of police investigations. Please also advise whether there was any contributory behaviour on the part of the victim and/or whether the victim was engaging in any criminal offence at the time of the incident
You may respond to our request via our email address, …
The investigating detective provided a one-page reply, via email, on 27 October 2015 in which he outlined the course of the investigation thus far. His opening sentence said:
The investigation is due to be suspended due to lack of evidence.
The penultimate sentence said:
In my opinion I would suggest that [DKB] is the suspect in this matter and not the victim and have no evidence to support the contrary.
On 2 May 2017 DKB applied to NSW Police Force for an internal review of Police conduct under the Privacy and Personal Information Protection Act 1998 (NSW) ("the PPIPA Act") . He alleged that the specific conduct he was complaining about was:
Decisions made by NSWPF to records in writing information regarding myself with unsubstantiated claims lacking in substance at the time of the incident and moreso upon reflection as the officer recalls the events, access and equity obtaining data.
The request for internal review was accompanied by a document prepared by DKB in which he cited 15 points in the email to the Commissioner for Victims Rights which DKB considered required corrective action.
DKB was then requested, by email dated 2 February 2018, to clarify what he meant by "access and equity obtaining data." Relevantly, he responded -
After the assault I called the station to see if I could have a copy of the report and the female officer on duty at Waverley said no. I now see they should have informed me I could obtain a copy via this process I have since discovered with you. It is by way of luck that I found out about the email as it was referred to in the report from victims services …I have had trouble with Vctims Services due to what has been written and they have stated in determinations the use the report and email as evidence when they refuse the claims I made.
On 21 February 2018 the NSW Police Force issued an internal review decision in which it found that:
1. DKB's internal review complaint called for consideration of whether the Information protections Principles (IPPs) relating to accuracy, access and disclosure had been breached when the email was provided to the Commissioner for Victims Rights;
2. the NSW Police Force was not required to comply with the PPIPA Act in the circumstances because :
1. the disclosure to the Commissioner for Victims Rights was permitted under s 12 of the Victims Rights and Support Act 2013 (NSW) and, as consequence, noncompliance was authorised by s 25(b) of the PPIPA Act ;
2. s 27 of the PPIPA Act provides that the Police are exempt from compliance with the IPPs, unless the conduct is in connection with the exercise of their administrative and educative functions, which the internal review decided was not the case, and
3. the refusal by the Police officer at Waverley to allow DKB access to "the report" (which the internal review took to mean COPS Event E6185988) was not a breach of the access information protection principle because the Police Force is exempt from complying with that principle in accordance with s 27 of the PPIPA Act.
On 14 March 2018 the Tribunal received an application from DKB under s 55 of the PPIPA Act seeking administrative review of the internal review decision under Administrative Decisions Review Act 1997 (NSW).
At a directions hearing held on 24 April 2018 the Tribunal identified a number of preliminary issues which, by consent, are to be determined on the papers. They are:
1. the application of the exemptions relied on by the Commissioner; i.e. the application of s 25 and s 27 of the PPIPA Act; and
2. whether the access IPP (s 12) was raised in the internal review application.
The Tribunal made directions for the parties to file material and submissions relating to the preliminary issues.
The preliminary issues have been referred to me for determination on the papers. I am satisfied that that the preliminary issues can be adequately determined by considering any written submissions or any other documents or material provided by the parties.
[2]
Material before the Tribunal
The Tribunal had before it the following material:
1. Administrative review application made by DKB 4 March 2018.
2. Section 58 documents filed on 18 April 2018
3. Submissions of DKB dated 28 April 2018
4. Bundle of documents numbered 1 to 54 provided by DKB.
5. Sound only recording of record of interview conducted on 5 October 2015.
6. Affidavit of Detective Senior Constable Keremelevski dated 5 June 2018.
7. NSW Police Force submissions dated 5 June 2018.
8. Further written submission from DKB dated 7 June 2018.
[3]
What conduct was the subject of the internal review application?
Having reviewed DKB's application for internal review under the PPIPA Act and subsequent correspondence regarding his "access and equity" complaint I am satisfied that he complained about Detective Senior Constable Keremelevski's conduct:
1. in recording COPs Event Ref No 61859881; and
2. in writing an email providing information to the Commissioner of Victims Rights,
which information DKB alleges was inaccurate and wrongly used and/or disclosed.
In submissions the NSW Police Force also identified the refusal by a female officer at Waverly to provide DKB with a copy of "the report" relating to the alleged assault, when he asked for it, as conduct about which DKB complained. The Police submit that the 'report' DKB was seeking access to is COPS Event E61859881. This is by no means clear to me from the written evidence. DKB's request for the Police report, is equally consistent with him seeking a copy of an incident report, as the COPS Event, although which is unclear.
DKB however, argues that his real complaint was that the Police officer did not tell him of his rights to seek access to information under the Government Information (Public Access) Act 2009 (the GIPA Act). I also note that in his submissions DKB indicated that this-
… is not a major issue I care about now but was to aid the NSWPF with quality improvements so the public services meet ISO9001 audit standards.
In his second submissions he wrote -
I did not complain that I did not receive a copy from the NSW police. Instead I do complain that the NSW police are expected to direct such an inquiry about viewing personal information appropriately. (go to GIPPA) [sic]
Given DKB's insistence that he was not complaining about Police conduct in refusing him access to "the report", I am not satisfied (as the internal review was) that DKB's internal review request sought to raise an issue concerning him being denied access, by a Police officer at Waverley, to COPS Event E61859881. While I can see how the internal reviewer interpreted the information provided by DKB to include such a complaint, the complaint was capable of being read in other ways: e.g. that the Police had not told him of his right to seek access to information under the GIPA Act. Given DKB's insistence that was not complaining about access being refused, I see no benefit in interpreting the internal review request to exclude what + says he was complaining about, and include a matter he says he did not complain about (being refused access).
The information protection principle that appears to be in play here, which concerns the failure of Police to advise DKB of his rights under the GIPA Act, is that found in s 13(c)of the PPIPA Act. It relevantly provides -
A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain:
(a) …
(c) if the agency holds personal information relating to that person:
(i) the nature of that information, and
(ii) the main purposes for which the information is used, and
(iii) that person's entitlement to gain access to the information.
Neither party has addressed that issue in evidence or submissions, because it was not an issue identified in the internal review, although it was, I think, fairly raised by DKB. As a consequence, I will not deal with that issue further in these reasons, but will make directions concerning how it is to be dealt with.
[4]
Section 27 of the PPIPA Act
Section 27 relevantly provides:
(1) Despite any other provision of this Act, … the NSW Police Force, … are not required to comply with the information protection principles.
(2) However, the information protection principles do apply to … the NSW Police Force … in connection with the exercise of their administrative and educative functions.
If the Police conduct which is the subject of the privacy complaint (in this case the detective writing both the COPS Event and the email in response to the request from the Commissioner of Victim's rights) relates to what have been called the core functions of the NSW Police Force, rather than its administrative or educative functions, then the IPPs do not apply to that conduct, and the Tribunal has no jurisdiction to conduct an administrative review: see AEC v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 30. In that case the conduct in issue was information sharing with a member of the public in the context of a proceeding for an apprehended violence order: see [2013] NSWADTAP 30 at [29]. It was found to fall squarely within s 27(1).
The Appeal Panel referred to the Police Act 1900 (NSW) when determining what the functions of the NSW Police Force are. Foremast among these is "to provide police services for New South Wales": see AEC at [24].
In CTU v NSW Police Force [2017] NSWCATAD 204 the Tribunal found that the provision of a criminal record check by the NSW Police Force in the context of processing an online National Police Check, for which a fee is paid, was conduct undertaken in connection with an administrative function. Senior Member Lucy said, at [19]:
The processing of an application for a criminal records check is also of an administrative nature.
She then turned her attention to the reliance the Police placed on the Appeal Panel decision in AEC v Commissioner of Police, NSW Police Force and said, at [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.
I agree with Dr Lucy's observations when reconciling the decision in AEC with that in CTU.
Unsurprisingly, the NSW Police Force submits that the detective's conduct in responding to a request from the Commissioner for Victims Crime is connected with its core functions, and not an administrative or educative function.
The information is issue related to the investigation of allegations concerning an alleged assault for which Victims Compensation was being claimed.
In his submission DKB argued that reliance on the exemptions (both s 27 and s25) by the NSW Police Force is for a purpose other than that for which they were intended' i.e., "to cover up the officer's damaging actions" which included recording "incorrect data" and providing an "inaccurate" response. I understand DKB is suggesting that Police cannot rely on the exemptions because their real purpose, in relying on them, is to avoid scrutiny under the PPIPA Act. That view is mistaken. If the conduct in issue is not in connection with an administrative or educative function of the NSW Police Force, the Police are not required to comply with the IPPs and the Tribunal has no jurisdiction to conduct a review.
In the present case, when Detective Senior Constable Keremelevski wrote the COPS Event, the Police were still gathering what evidence they could in the course of an active investigation into complaints of assault, relating to the fracas that took place at DKB's front door. That was an active investigation for which Detective Keremelevski had responsibility. What he was undertaking was pure police work. He was not engaged in any administrative or educational function of the Police Force.
Detective Kermelevsjki wrote the email to the Commissioner of Victim's Right when the investigation into the assault was 23 days old. The Detective advised the investigation was 'due to be suspended due to lack of evidence," indicating it was still ongoing: it had not yet been suspended. The email was in direct response to a request from the Commissioner of Victims Right, made for the purposes of victims compensation claim made by DKB. It was not a routine criminal records check, but an express and lawful inquiry made to the officer conducting the investigation, who, when replying, was acting in that role, and not simply undertaking an administrative task. A reading of the email, not matter how much DKB disagrees with it, shows that it was a considered response to the Commissioner's request by a detective undertaking investigative duties.
I am satisfied that Detective Senior Constable Keremelevski's conduct, in writing the email to Commissioner of Victims Rights, fell within the general policing functions of the NSW Police Force, and, as a result, is not subject to the information protection principles in the PPIPA Act.
[5]
Section 25 of the PPIPA Act
Section 25 provides:
A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:
(a) the agency is lawfully authorised or required not to comply with the principle concerned, or
(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
In the present case there is no dispute that the Commissioner of Victims Rights specifically asked Police for:
1. an update on the status of the investigation;
2. for details of any contributory behaviour by DKB; and
3. whether he was involved in an offence at the time.
That request for information made specific reference to s 12 of the Victims Compensation and Support Act which sets out the Commissioner of Victims Rights powers to compel the production of information:
12 Powers of Commissioner to compel production of information
(1) The Commissioner may, by notice in writing, request that any person provide, or require any Government agency to provide, the Commissioner with information (including documents) relevant to the exercise of the Commissioner's functions under this Act.
(2) Any such notice may specify a day on or before which the information is required to be provided.
(3) A person who provides the Commissioner with information that the person knows is false or misleading in a material particular is guilty of an offence.
Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(4) If documents are given to the Commissioner under this section, the Commissioner:
(a) may take possession of, and make copies of or take extracts from, the documents, and
(b) may keep possession of the documents for such period as is necessary for the purposes of exercising the function concerned, and
(c) during that period must permit the documents to be inspected at all reasonable times by the persons who would be entitled to inspect them if they were not in the possession of the Commissioner.
(5) A Government agency is not required to provide any information under this section if there is an overriding public interest against the disclosure of the information for the purposes of the Government Information (Public Access) Act 2009 or if access to the information would otherwise be denied under that Act.
The letter from the Commissioner of Victim's Rights (set out in full at para 3 above) makes it very clear that the Commissioner is requesting further information - have already received the COPS Event - about the incident and is doing so under s 12 of the Victims Rights and Support Act. That section requires compliance with the request by the Police Force, subject to the ss (5) exemption.
In order to comply with the requirements of the Victims Rights and Support Act, when requesting information relevant to the exercise of the Commissioner's functions (in this case the determination of a claim for compensation made by DKB), non-compliance with information principles of the PPIPA Act (assuming they apply) was necessarily implied and reasonably contemplated: see PN v Department of Education and Training (GD) [2010] NSWADTAP 59 at [54]); AFC v The Sydney Children's Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189 at [29, 33]); and AIL v Department of Premier and Cabinet [2012] NSWADT 191 at [27, 53]. As a consequence, with respect to Detective Senior Constable Keremelevski's conduct, under s 25 the NSW Police Force was "not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19" of the PPIPA Act."
[6]
Conclusion
It follows that DKB's claim insofar as it relates to the conduct of Detective Senior Constable Keremelevski's should be dismissed for want of jurisdiction.
Insofar, as it relates to the failure of the Police officer at Waverley to advise DKB of his right to seek access to information under the GIPA Act, and whether that constitutes a breach of s 13(c) of the PPIPA Act, I make the following directions:
1. If DKB does not wish to proceed with this aspect of his application for review he is to file and serve a letter advising of his intention to withdraw the application, no later than 7 September 2018.
2. This matter is to be listed for directions, in the directions list, after 10 September 2018, for the purpose of determining the future conduct of the issue.
[7]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 August 2018