EFR v Commissioner of Police [2020] NSWCATAD 159 | Case summary

Discussion and findings

The information protection principles (IPPs) are provided in Div 1 of Part 2 of the PPIP Act, in ss 9-19. Div 2 of Part 2 includes general provisions, including s 20, which states that the IPPs apply to public sector agencies, and s 21, which states that a public sector agency must not do anything or engage in any practice that contravenes an IPP applying to the agency.
Div 3 of Part 2 provides specific exemptions from the principles. The respondent Commissioner relies on the specific exemption applicable to the NSW Police Force and other specified law enforcement agencies in s 27(1) of the PPIP Act. The exemption granted by s 27(1) does not apply to those agencies "in connection with the exercise of their administrative and educative functions". The interpretation of s 27, and in particular, the term "administrative" as used in s 27(2) of the PPIP Act, has been considered in a number of decisions of this Tribunal and its predecessor, the Administrative Decisions Tribunal.
In HW v Commissioner of Police, NSW Police Service [2003] NSWADT 214 the Tribunal distinguished between what it described as "core" responsibilities, which would not be described as "administrative", and other responsibilities which are not part of the core responsibilities of NSW Police: 25 The question therefore is where does the conduct in issue lie along the spectrum of the operational areas identified by s 27. The section seeks, I consider, to draw a distinction between the core responsibility of the Police Service and its 'administrative' and 'educative' functions. 26 The provision of 'police services' could perhaps be described as the core responsibility. Another way it was put in submissions was that its core responsibility was 'law enforcement'. The Police Act 1990 s 6 provides that the Police Service has three functions, the first of which is 'to provide police services for New South Wales'. 'Police services' are defined as follows: "police services" includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. 27. A broad interpretation of 'administrative functions' may be appropriate in a legislative scheme which does not otherwise compartmentalise the functions of a public sector agency (as I considered to be the case in relation to the way that expression applies to the Police Service in the setting of the amendment of personal record provisions in the Freedom of Information Act 1989: see N (No. 3) -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (subject to appeal)). However in s 27 the Parliament has taken a compartmentalised approach to the functions of the law enforcement agencies mentioned. The division, as I see it, is as between their core responsibilities and those responsibilities which are not part of their core responsibilities. In particular the meaning of the word 'administrative' is to be read down so as not to embrace those core responsibilities. Similarly 'educative' responsibilities, which might on one view simply be a component of 'administrative' activity are to seen as separate from administrative responsibilities and again not forming part of the core responsibilities. 28. In my view the activities of a police officer in supporting a prosecution, at least where he or she is asked to exercise independent discretion and judgment in performing a task, are activities that form part of the core responsibilities of the Police Service. The fundamental responsibility of the Police Service is the investigation of crime. While the Police Service's responsibility for investigation is usually at an end by the time a case has gone to the District Court for trial, there may be a continuing need for some activity of that kind. In this instance the prosecution team called for a further narrow work of an investigative kind to be done. The means to be used was a subpoena for documents. This in my opinion was work of a investigative nature (though not connected with the crime itself) and related to the Police Service's core responsibilities. 29. It was not 'administrative' in the sense in which I consider this term is used in this Act. In order for the primary provision, s 27(1), to be given effect, the term can not be used to refer to the entirety of the administrative activity of the Police Service, which includes the investigation of crime. Read in context, I am satisfied that it is intended to have a narrower compass going to those aspects of the operation of the agency that, as I see it, do not directly involve the carrying out of the core responsibilities. As I see it, 'administrative' when used in contradistinction to s 27(1) and alongside the term 'educative' seeks to refer to those activities of the Police Service that have to do with providing administrative support for the conduct of its core responsibilities. 30. So, for example, corporate services areas performing functions such as personnel, budget and information technology involve the performance of 'administrative' functions. There may be areas of the Police Service where the characterisation of the activity in terms of core/administrative/educative may vary depending on context that has given rise to the conduct in issue. (The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime, while in other instances they are done administratively, for example for background checks on prospective employees. The exception in s 27(2) may also cover licensing responsibilities vested in the Commissioner, such as for firearms licensing and security industry licensing. It is not necessary to pursue these questions any further here.)
In Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 the Appeal Panel disapproved reliance in the decision under appeal on a "core" and "non-core" distinction. The Appeal Panel said: 17 In our view, the Tribunal erred in depicting the question of whether a 'core'/'non-core' distinction provides the basis for analysis. We agree with the Police submission that the Tribunal in para [26] mischaracterised the question. The President was using, as we see it, 'core' as an aid to understanding the generality of the policing functions of the Police Force. The term was not being used to prescribe a legal test. … 20 In our opinion, section 27(1) gives a blanket exclusion from the application of the Act to the named agencies in respect of all of their activities, subject only to the qualification set out in s 27(2). Therefore the starting point is that all functions of the Police Force have the benefit of the s 27(1) exclusion. It is not necessary to refer to the Police Act list of functions. The question is simply whether the activity is brought back under the regulation of the Act because it belongs to the 'administrative' or 'educative' services of the Police Force. In our view, the way 'administrative services' is depicted in para [30] of the President's reasons in HW, especially sentence one, captures the meaning intended for this term in sub-section (2).
In AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 the Appeal Panel gave further consideration to the meaning of the term "administrative" as used in s 27(2): 23. The view has been expressed that the adjective 'administrative' bears in this context the connotation of activities relating to the internal administration of the agency, i.e. activities that are the usual incidents of any organisation whatever its official, public functions may be. See, to that effect, Commissioner of Police, NSW Police Force v YK [2008] NSWADTAP 78 at [20] ff. The Appeal Panel in that case expressed the view that the 'administrative functions' to which s 27(2) refers are those necessary in any agency or any organisation, such as the management of personnel records. The Commissioner accepts this interpretation. 24. It may be that this is too narrow a construction. Section 6 of the Police Act 1990, 'Mission and functions of the NSW Police Force', provides: 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: police services includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. (5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988. (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002. 25 The primary function of the Police Force is the one set out in s 90(2)(a), i.e. 'to provide police services for New South Wales'. Functions vested in the Police Force under sub-section (2)(b) may fall outside the immunity conferred by s 27 of the Privacy Act, for example the functions connected with security and firearms licensing.
In these proceedings the issue is whether LSCON Parker's notification to the school Principal of the incident involving EFR was "in connection with the exercise of …administrative" functions of the NSW Police Force. If it could not be so characterised, the NSW Police Force was not required to comply with the IPPs in respect of that conduct.
As YK holds, the language of "core" and "non core" is not the basis for analysis, and the word "core" was used in HW as an aid to understanding the generality of the policing functions of the NSW Police Force. As noted in HW at [29], the term "administrative" cannot refer to the entirety of the administrative activity of the NSW Police, which would include investigation of crime, and it is intended to have a narrower compass. As discussed in HW at [30], in determining what that is, the context that has given rise to the conduct in issue is relevant.
Section 27(1) of the PPIP Act excludes all of the functions of the NSW Police Force from compliance with the IPPs. The question then is under s 27(2) whether the particular activity or conduct the subject of the complaint is, to use the language of YK at [20], "brought back under the regulation of the Act because it belongs to the 'administrative' or 'educative' services of the Police Force".
In CTU v NSW Police Force [2017] NSWCATAD 204 at [18], the Tribunal held that the word "administrative" in s 27(2) is to be given its ordinary meaning, or commonly understood meaning, unless the context indicates some other meaning is intended. That meaning, according to the Macquarie Dictionary, is "relating to administration; executive; administrative ability; administrative functions". Administrative functions would include, as held in HW at [30], "corporate services areas performing functions such as personnel, budget and information technology". As discussed in AEC, however, the term "administrative" is not limited to functions relating to corporate services.
In AEC the NSW Police had disclosed information about a spent conviction for AEC to his ex-partner in the course of Local Court proceedings in which AEC's ex-partner sought an Apprehended Violence Order and AEC was charged with assault. The Tribunal at first instance (AEC v NSW Police Force [2013] NSWADT 32) had found that dealing with AEC's criminal records in that matter could not be characterised as administrative, referring to the distinction drawn in HW in the context of handling of criminal records to disclosures which occur in the course of the investigation of crime, and those which are done administratively, for example for background checks on prospective employees. That conclusion was not disturbed on appeal: AEC v Commissioner of Police, NSW Police Force [2013] NSWADTAP 30 at [29].
In CTU the applicant had been convicted and sentenced to imprisonment, suspended on his entering into a bond, in 2005. In 2015 the applicant was issued with a National Criminal History Check and a National Police Certificate, each showing the conviction. It was not in dispute that NSW Police provided information about the applicant's conviction to third parties for the purposes of the National Criminal History Check and National Police Certificate. The issue was whether the provision of a criminal record check to members of the public was in connection with the administrative functions of NSW Police. The Tribunal rejected a submission that information sharing is a public function which is not administrative, holding at [19] that provision of criminal history information to a third party for the purposes of a National Criminal History Check or National Police Certificate, where done as part of a routine application, is an administrative function according to the ordinary meaning of the terms. The processing of an application for a National Police Check, online and on payment of a fee, is an administrative function, as is the processing of an application for a criminal records check.
The Tribunal distinguished AEC, stating (at [22]): 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.
That reasoning was followed in DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193, in which NSW Police had responded to a request for information by the Commissioner for Victims Rights in considering DKB's application for compensation under the Victims Rights and Support Act 2013. The Tribunal at first instance held that at the time a police officer wrote a COPS Event report, an active investigation into the alleged offence was ongoing; and at the time that officer wrote the email responding to the Commissioner of Victims Rights, advising that the investigation was due to be suspended due to lack of evidence, it was still ongoing. The Tribunal concluded (at [27]) that the email was not a routine criminal records check, but an express and lawful inquiry made to the officer conducting an investigation who, when replying was acting in that role and not simply undertaking an administrative task. An appeal from that decision was dismissed: DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39.
The respondent submits that CTU can be distinguished from the present circumstances, as a first instance decision, and relating to a routine application for a criminal history check which is a backroom function, and prefers the narrower interpretation adopted in YK that administrative functions are limited to those which would be necessary in any agency or organisation such as management of personnel records. However, the subsequent Appeal Panel decisions in AEC and DKB have taken a broader approach to the question. Neither of those decisions supports the proposition that any provision of information about the detail of a person's criminal history is an administrative function, however, depending on context it may be. That is illustrated in the distinction drawn at [30] in HW between disclosures of criminal records in the course of the investigation of crime, from instances where that is done administratively such as background checks on prospective employees.
In the present circumstances, LSCON Parker informed the school about the incident on 21 June 2019, which was after she had informed EFR's father that EFR would likely be dealt with under the Young Offenders Act and after she had arranged an appointment to go through the process which would if there were an admission of guilt result in a caution; and before that appointment on 29 June 2019 at which EFR provided a Juvenile Hand-Written Statement admitting to the offence. The notice of caution, and caution were later issued.
The Tribunal agrees with the applicant that at the time LSCON Parker informed the school there were no active investigation issues that might require some assistance from the school, such as assistance with investigation. However, the process under the Young Offenders Act which ultimately resulted in the issue of a caution on 9 July 2019 was still on foot. This was not a routine provision of information in response to an application and payment of a fee, as was the case in CTU; rather, it was analogous to the actions referred to at para [28] in HW, or in AEC. Whether or not the notification to the school was appropriate or warranted in all the circumstances, it was not done "in connection with the exercise of…administrative ..functions" of the NSW Police Force so as to fall within s 27(2) of the PPIP Act. That means that applying s 27(1) of the PPIP Act, the NSW Police Force was not required to comply with the relevant IPPs.
The Statement of Agreed Facts states at 1.7 that the phone call to the Acting Principal was purportedly pursuant to the MOU. There were two versions of that document provided to the Tribunal, one provided with the application for review which ECI states she obtained from the respondent, and from which the extract in the respondent's submissions quoted above is drawn; and the other annexed to the Statement of Agreed Facts, which the respondent in submissions states is the current authorised version. While the documents are not identical, they are not materially different. Neither in terms is framed in terms of any obligation of disclosure. The circumstances identified in the MOU in which it is appropriate for NSW Police to provide information relate to the need to maintain safe and secure school environments, and to assist schools to provide services for the safety, welfare and wellbeing of children and young people or manage health and safety risks in schools. The MOU states that information should be provided "according to the collection principles in the relevant privacy legislation". Whether or not the disclosure was consistent with the MOU, the MOU would not authorise or require disclosure in circumstances where it is s 27(1) of the PPIP Act that exempts the NSW from compliance with the IPPs.
The Tribunal agrees with the respondent that s 22 of the PPIP Act does not operate so as to make the exemption in s 27(1) inapplicable. Section 65 of the Young Offenders Act prohibits the publication or broadcasting of the name of any child dealt with under the Young Offenders Act, neither of which occurred. Section 66 prohibits the divulging of information acquired in the exercise of functions under the Young Offenders Act, except in the exercise of functions under that Act. The respondent relies on s 66(2)(a) of the Young Offenders Act, which would permit disclosure of information being "records of, or relating to, cautions and conferences" under that Act to "a person responsible" for EFR. That term is defined in s 4 to include "a person who has the care of the child (whether or not the person has the custody of the child)". Whether or not s 66(2)(a) applied, if the notification to the school were a breach of either s 65 or s 66 of the Young Offenders Act, s 22 of the PPIP Act would mean that nothing in Div 3 of Part 2, including s 27, would override those provisions and authorise the conduct prohibited by that legislation. Section 27 does not "authorise" a public sector agency to do anything it would otherwise be prohibited from doing, rather it operates so that any such conduct would not be in breach of an IPP.
The Tribunal is satisfied that the notification to the school on 21 June 2019, while purportedly in reliance on the MOU, fell within the exemption for NSW Police provided by s 27(1) of the PPIP Act. It was not "in connection with the exercise of…administrative ..functions" of the NSW Police Force so as to fall within s 27(2) of the PPIP Act. The NSW Police Force was not required to comply with the IPPs set out in Div 1 of Part 2, including those in ss 17 and 18 of the PPIP Act relating to use and disclosure of personal information. That conclusion means that the notification to the school could not be a contravention of the PPIP Act.
Section 55(2) of the PPIP Act sets out the orders the Tribunal can make on reviewing conduct of an agency that is alleged to amount to a contravention of an IPP. This includes deciding to take no further action. In circumstances where the respondent agency was not required to comply with the IPPs, the appropriate order is to decide to take no further action.

EFR v Commissioner of Police

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