The applicant filed no additional evidence on the preliminary issue, but referred to a number of the s 58 documents in his submissions.
His submissions may be summarised as follows:
1. the respondent has failed to provide evidence to counter the respondent's complaint that an employee of the respondent disclosed his confidential complaint information to a colleague outside of their normal policing duties and obligations;
2. the respondent's attempt to "write off the whole matter" on the basis that "anything and everything" is information arising out of a complaint made under Pt 8A of the Police Act is "ludicrous", with the respondent repeatedly claiming that:
the scope of the complaint can't be expanded, however wants us to believe that a conversation at a coffee cart should be considered information discovered as part of a Part 8A complaint.
1. this was not information arising out of a complaint. This was gossiping and unauthorised sharing of confidential New South Wales Police Force "holdings" by employees with personal knowledge of that information;
2. what has been established through the respondent's submission is that there was ample opportunity for the unnamed police officer to have knowledge of the applicant's private complaint information;
3. Mr Holgate's reference to "a weapons trainer" supports the applicant's original claim that an ex-weapons instructor had knowledge of the applicant's personal information, knowledge gleaned through that individual's position and unlawfully imparted to Senior Constable Biswas;
4. as to a submission of the respondent's that the Tribunal ought to give some weight to the applicant not specifically mentioning the Taser Review Panel process in his complaint or in his statement, the applicant submits that it is not his role to direct the investigation nor establish avenues that should be investigated. Nor is it his role to make assumptions as to the when, where or how his personal information came to the attention of the ex-weapons instructor. He submits that he lodged a complaint on the basis of information he had at the time, and that it is the role of the investigator to properly and thoroughly investigate the matter;
5. then internal reviewer sought advice from the Privacy Commissioner as to the validity of the applicant's complaint. As the Privacy Commissioner determined there were grounds for a review, the applicant believes that the information disclosed was personal information under the PPIP Act.
The applicant concludes with the following submission:
If the Tribunal accepts the Respondent's assertion that, regardless of the circumstances, disclosure of complaint information falls under Part 8A and is not personal information within the PPIP Act then it would also have to accept that employees of the NSWPF are free to disclose any and all complaint information with whomever they choose, be it a colleague, family member or random member of the public. Clearly this is a nonsense proposition that would have serious consequences should it occur. If, however, the Tribunal rejects the Respondent's proposition, then I would submit that is sufficient to dismiss this preliminary question and proceed with the substantive matters.
[2]
The respondent's submissions in reply
The respondent filed submission in reply on 5 February 2024. In summary, the respondent submits:
1. the relevant question for the Tribunal is whether the information concerned is excluded from the definition of personal information as it is "information about an individual arising out of a complaint made under Part 8A of the Police Act 1990"; PPIP Act, s 4(3)(h);
2. the exclusion to the definition of "personal information" in s 4(3)(h) is not context specific. The exclusion will apply if the information is characterised as information "arising out of" a Pt 8A complaint, irrespective of how that information is allegedly disclosed or used thereafter (including "amongst a group of police employees at a coffee cart");
3. if the Tribunal accepts that the exclusion applies, then there is no "personal information' is alleged to have been dealt with by the respondent and, therefore, there is no "conduct" that can be reviewed by the Tribunal;
4. there is no textual basis for reading in a requirement that s 4(3)(h) of the PPIP Act only applies when information is "discovered as part of a Part 8A complaint" or information that is disclosed in the context of a Part 8A Taser Review Panel investigation;
5. the exclusion to the definition of "personal information" in s 4(3)(h) is to be contrasted with other exclusions or exemptions in the PPIP Act, in respect of which the context of the use or disclosure is relevant. Section 24(1) of the PPIP Act exempts certain investigative agencies from compliance with some information protection principles if compliance "might detrimentally affect" the agency's complaint handling or investigative functions. Similarly, s 24(2) exempts an investigative agency from complying with s 17 of the PPIP Act if the use of the information for a secondary purpose is "reasonably necessary" in order to enable the agency to exercise its complaint handling or investigative functions;
6. section 4(3)(h) contains no comparable qualification, being directed simply to information "arising out of" a Pt 8A complaint. "Arising out of" is to be afforded its ordinary meaning, as information that has "resulted", "proceeded" or "originated" from the Pt 8A complaint: KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [13];
7. the deliberate use of "arising out of" in s 4(3)(h) of the PPIP Act instead of "about" to describe the relationship between the information and a Pt 8A complaint is significant and also tends against a conclusion that the application of s 4(3)(h) requires an analysis of the context in which the information is dealt with. This can be compared with s 4(3)(i) of the PPIP Act, which excludes "information or an opinion about an individual's suitability" and only applies in circumstances where an individual's suitability is a live issue: DTN v Commissioner of Police [2022] NSWCATAD 158 at [30];
8. the scope of the exemption in s 24 of the PPIP Act is relevant to construing the exemption in s 4(3)(h). If s 4(3)(h) of the PPIP Act were confined to dealings with personal information that progresses a complaint investigation, as the applicant contends, it is not clear what additional work s 4(3)(h) would do beyond the work already done by the exemption provided by s 24 of the PPIP Act. That s 4(3)(h) was also inserted into the PPIP Act indicates that it has a different field of operation than s 24;
9. the applicant does not dispute that the subject information of his internal review application concerned his "private complaint information" or that the conduct involves the alleged mishandling of his confidential "complaint information" to which Pt 8A of the PPIP Act applied. Rather, he contends that the Tribunal should read in a limit to s 4(3)(h) of the PPIP Act by reference to the "serious consequences" if the PPIP Act did not apply to such information. However, contrary to the applicant's submissions, information "arising out of" a Pt 8A complaint is not, by its exclusion from the PPIP Act, entirely unreviewable. Rather, it is subject to a separate complaint procedure contained in Pt 8A of the Police Act, reflecting the legislature's intention to provide a different avenue of review for of complaints in respect of information of that kind.
[3]
Relevant Law
The relevant provisions of the PPIP Act are ss 4, 17, 24, 52, 53 and 55. These are set out in Attachment A.
The relevant provisions of the Police Act are set out in Attachment B.
[4]
Relevant principles - PPIP Act
The respondent submits, and I accept, that:
1. a person who is aggrieved by the conduct of a public sector agency to may seek a review of that conduct: s 53;
2. an application for internal review of conduct must satisfy the requirements prescribed by s 53(3);
3. in reviewing the conduct the subject of the application, the internal reviewer is required to consider any relevant material provided by the applicant: s 53(5);
4. following the internal review, the agency may take any action under s 53(7), including by determining that no further action will be taken: s 53(7)(a). If a person who makes an application under s 53 is not satisfied with the findings on internal review or the action taken by the agency, the person may apply to the Tribunal for administrative review of the conduct: s 55(1);
5. Pt 5 of the PPIP Act applies to the following conduct, pursuant to ss 52(1) and (2):
1. the actual or alleged contravention by a public sector agency of an information protection principle (IPP) that applies to the agency;
2. the actual or alleged contravention by a public sector agency of a privacy code of practice that applies to the agency;
3. the actual or alleged disclosure by a public sector agency of personal information kept in a public register;
1. Pt 2 of Div 1 of the PPIP Act contains 12 IPPs that address matters such as the collection, holding, use and disclosure of personal information, as well as security of. access to, amendment and disposal of personal information. The IIPs apply to dealings with "personal information" by "public sector agencies" and impose restrictions on how public sector agencies may deal with personal information;
2. the term "personal information" is defined in s 4(1) of the PPIP Act to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion";
3. section 4(3) of the PPIP Act excludes certain information from the definition of "personal information". Relevantly, pursuant to s 4(3)(h), personal information does not include "information about an individual arising out of a complaint made under Part 8A of the Police Act 1990".
[5]
Relevant principles - Police Act
The respondent submits, and again I accept, that:
1. Pt 8A of the Police Act provides for the investigation of complaints about the conduct of police officers and employees;
2. a complaint may be made by any person to the respondent, in relation to, inter alia, the conduct of a police officer, where such conduct may amount to misconduct or maladministration: s 124;
3. in accordance with Div 3 of Pt 8A, a system recording information about misconduct matters may be established by the regulations (that is, the complaints information system established under cl 56 of the Police Regulation 2015 (NSW), and complaints are to be registered on that system: Police Act, ss 128 and 129;
4. as soon as practicable after receiving a complaint, the respondent may determine to investigate the complaint, refer it to the Law Enforcement Conduct Commission for investigation, or take no further action: s 131.
[6]
Consideration
The respondent submits that the Tribunal lacks jurisdiction to determine the applicant's application for administrative review as the information the subject of the application for internal review was not "personal information" within the meaning of the PPIP Act. The respondent submits that this is so because the information the subject of the application for internal review (being "disclosure by PSC staff of [the applicant's] confidential complaint information to a colleague who is not entitled to know"), is "excluded from the definition of personal information as it is "information about an individual arising out of" a complaint made under Pt 8A of the Police Act: PPIP Act, s 4(3)(h).
As such, the respondent submits that there is no "conduct" within the meaning of s 52 of the PPIP Act that can be the subject of an application for internal review under s 53 of the PPIP Act and, therefore no application that can be made to the Tribunal under s 55 of the PPIP Act.
I disagree.
The respondent submits that the expression "arising out of" is to be afforded its ordinary meaning, being as information that has "resulted", "proceeded" or "originated" from the Pt 8A complaint, relying on KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [13].
The Appeal Panel of the Administrative Decisions Tribunal there stated:
13 In our view the Tribunal accurately stated the interpretations that the Tribunal has developed on the approach to be taken in determining this question. In our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. Unless there is some widening of the application within that process, which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal. It is plain from the scheme of the Act that the Parliament intended that the agency have the first opportunity, always, to deal with the matters of complaint. Except in the case where the agency fails to respond to the application for internal review, the scheme of the Act contemplates that the internal review report and its outcomes will be among the material that is placed before the Tribunal. We will not, on this occasion, deal at length with these questions. In addition to the authorities noted by the Tribunal, we refer also to recent statements on this matter by the President in NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 213; and OA v New South Wales Department of Housing [2005] NSWADT 233 [5]-[7].
That passage does not appear to support the proposition stated.
The reference to information that has "'resulted', 'proceeded' or 'originated'" appeared in par [37] as follows:
37 The further question, arguably, was whether the Part 8A investigation had miscarried when the disclosure was made to the employer of KO's complaint and the circumstances of the day of 30 April 2002. It might then be contended that the disclosure fell subject to the Act, and a contravention had occurred. As to this matter the Tribunal. The Tribunal said:
42. … It was disclosed to the Managing Director on 21 August 2002 as a necessary part of the investigation itself by an experienced criminal investigator. As a necessary part, it plainly "arose out of" the said investigation. The Inspector wanted to test the credibility of the applicants' allegations. He did that by informing the Managing Director (and the Site Supervisor) of the complaint and earlier arrest of the applicant son in order to put the questions he was asking in their proper context and obtain relevant cooperation and a detailed written statement.
43 The information in issue has plainly "resulted, proceeded or originated from a complaint made under Part 8A" ([KO & anor -v- Commissioner of Police, New South Wales Police (GD)] [2004] NSWADTAP 21 at [30]) and is relevant to that complaint - GA v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [55]. The relationship of the said information to the complaint is neither tenuous nor indeterminate - KO & KP v Commissioner of Police, NSW Police (GD) [2004] NSWADTAP 21 at [32].
44 It might be said it was not strictly necessary for all of the information in issue to have been disclosed by the Inspector to the Managing Director. However, as I have found, the Inspector was an experienced criminal investigator and he considered it necessary at the time to release some information concerning the complaint itself to the Managing Director in the course of the conduct of his Part 8A investigation. He was entitled to fully test the credit of the complainants in all relevant respects by his chosen method based upon his experience, and that is what he did.
45 Accordingly, the information in issue was not personal information under the Privacy Act.
(emphasis added)
However, when one goes to KO & anor v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21 at [30] and following, one reads:
30 As we see it, what is required to be shown is that the information in issue has 'resulted', 'proceeded' or 'originated' from a complaint made under Part 8A.
31 While care must be shown in having regard to cases interpreting the words 'arising out of' in other and quite remote statutory contexts, the courts have given a wide meaning to the phrase 'arising out of a contract' or 'arising out of an agreement'. They did not limit the matters caught by the phrase to, for example, the contents of the agreement, but saw the expression 'arising out of' as catching events that occurred in execution of the contract or agreement: see cases cited at Stroud's Judicial Dictionary of Words and Phrases (6th ed 2000).
32 In our view there must be some boundary to what can be said to be information 'arising out of' a Part 8A investigation. It is difficult precisely to describe it. We agree in general terms that these words can not protect a Part 8A investigation from all collections, uses or disclosures of personal information that might occur during its course. So we agree with the Tribunal that the exclusion would not protect information that had an 'indeterminate' or 'tenuous' relationship - and, a fortiori, no relationship at all - with the investigation.
33 We note that this issue has been considered, and resolved in similar terms, by a differently constituted Appeal Panel (the presiding member being Hennessy DP, and the other members being the same two members who make up this Panel) in the case of GA and ors v Department of Education and Training and NSW Police [2004] NSWADTAP 18 at [45]-[49].
34 The following passages from the decision in GA are relevant:
'50. … It follows that an investigation carried out under Part 8A results or proceeds from the complaint at least in a general sense. Accordingly, information collected, used or disclosed during an investigation into a complaint may, depending on its nature, arise out of that complaint. In coming to that conclusion we have rejected the appellants' submission that the legislature did not intend to exempt the PPIP Act from the investigation process because exemptions relating to law enforcement and investigative agencies are provided for in s 23 and s 24 respectively. Legislative provisions are to be interpreted in accordance with the purpose or object of the legislation as a whole, not in accordance with, or by reference to, particular provisions. …
52 The appellants' alternative submission, as we understand it, was that information arising out of the complaint does not include information that is unrelated to the subject matter of the complaint. …
…
55 … However, given the purpose of the legislation and the exception in s 4(3)(h), we consider that the phrase should be interpreted narrowly, but still in accordance with its ordinary meaning. Consequently, the exception will only apply to information which results or proceeds from a complaint and is relevant to that complaint. A broader interpretation would enable gratuitous information, such as some of the background information provided by the Principal, to be exempt from the provisions of the PPIP Act.'
(emphasis added)
The complaint was made to Chief Inspector Holgate on a date unknown to me as it is not disclosed in the evidence. However, it is likely to be on or shortly after 27 February 2023, given that Sergeant Burrow was agitating the the information in a written form, and in any event was under an obligation to report the information to the Commissioner "promptly": Police Act, s 211F(2).
But, even giving the words "arising out of" their widest possible meaning, I fail to see how conduct occurring on 21 February 2023, and which therefore preceded the Pt 8A complaint, was conduct:
"arising out" of the subsequent Pt 8A complaint; or
"resulted" from the Pt 8A complaint; or
"proceeded" from the Pt 8A complaint; or
"originated" from the Pt 8A complaint.
As I say, the conduct preceded the Pt 8 investigation, and in fact was the cause of it of that investigation.
[7]
Conclusion
It follows that I determine the preliminary issue raised by the respondent in favour of the applicant.
[8]
Orders
The Tribunal orders:
1. The respondent's application to dismiss the applicant's application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed.
2. Costs are reserved.
[9]
Relevant Provisions of the PPIP Act
4 Definition of "personal information"
(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following -
…
(h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990,
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.
24 Exemptions relating to investigative agencies
(1) An investigative agency is not required to comply with section 9, 10, 13, 14, 15, 18 or 19 (1) if compliance with those sections might detrimentally affect (or prevent the proper exercise of) the agency's complaint handling functions or any of its investigative functions.
(2) An investigative agency is not required to comply with section 17 if the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary in order to enable the agency to exercise its complaint handling functions or any of its investigative functions.
52 Application of Part
(1) This Part applies to the following conduct -
(a) the contravention by a public sector agency of an information protection principle that applies to the agency,
(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,
(c) the disclosure by a public sector agency of personal information kept in a public register.
(2) A reference in this Part to conduct includes a reference to alleged conduct.
(3) This Part does not apply to any conduct that occurred before the commencement of this Part.
(4) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to or in respect of conduct to which this Part applies.
53 Internal review by public sector agencies
(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.
(1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information).
Note -
Any such conduct can still be administratively reviewed by the Tribunal. See section 55 (1A).
(2) The review is to be undertaken by the public sector agency concerned.
(3) An application for such a review must -
(a) be in writing, and
(b) be addressed to the public sector agency concerned, and
(c) specify an address in Australia to which a notice under subsection (8) may be sent, and
(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and
(e) comply with such other requirements as may be prescribed by the regulations.
(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person -
(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and
(b) who is an employee or officer of the agency, and
(c) who is otherwise suitably qualified to deal with the matters raised by the application.
(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by -
(a) the applicant, and
(b) the Privacy Commissioner.
(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for an administrative review of the conduct concerned.
(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following -
(a) take no further action on the matter,
(b) make a formal apology to the applicant,
(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),
(d) provide undertakings that the conduct will not occur again,
(e) implement administrative measures to ensure that the conduct will not occur again.
(7A) A public sector agency may not pay monetary compensation under subsection (7) if -
(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of -
(a) the findings of the review (and the reasons for those findings), and
(b) the action proposed to be taken by the agency (and the reasons for taking that action), and
(c) the right of the person to have those findings, and the agency's proposed action, administratively reviewed by the Tribunal.
55 Administrative review of conduct by Tribunal
(1) If a person who has made an application for internal review under section 53 is not satisfied with -
(a) the findings of the review, or
(b) the action taken by the public sector agency in relation to the application,
the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.
(1A) A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct.
(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders -
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c) an order requiring the performance of an information protection principle or a privacy code of practice,
(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f) an order requiring the public sector agency not to disclose personal information contained in a public register,
(g) such ancillary orders as the Tribunal thinks appropriate.
(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.
(4) The Tribunal may make an order under subsection (2) (a) only if -
(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.
(4A) The Tribunal may not make an order under subsection (2) (a) if -
(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(5) If, in the course of an administrative review, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.
(6) The Privacy Commissioner is to be notified by the Tribunal of any application for an administrative review. The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to an administrative review.
(7) The Information Commissioner is to be notified by the Tribunal of any application for a review under this section that concerns the provision of government information by an agency (within the meaning of the Government Information (Public Access) Act 2009). The Information Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to such a review.
[10]
Relevant Provisions of the Police Act
Part 8A Complaints about conduct of police officers, administrative employees and the NSW Police Force
Division 1 Preliminary
…
Division 2 Procedure for making complaints
124 Making of complaints to Commissioner
(1) Any person may complain to the Commissioner about conduct of a police officer or administrative employee that is (or could be) police misconduct, administrative employee misconduct or officer maladministration.
(2) Any person may complain to the Commissioner about conduct of the NSW Police Force that is (or could be) agency maladministration.
(3) This section does not affect any other right of a person to complain about the conduct of an administrative employee or a police officer or the NSW Police Force.
…
…
Division 3 Misconduct matters information system
128 Misconduct matters information system
(1) The regulations may make provision for or with respect to a system for recording information about misconduct matters concerning police officers, administrative employees and the NSW Police Force received by the Commissioner or of which the Commissioner becomes aware under this Act and received by the LECC or of which the LECC becomes aware under the Law Enforcement Conduct Commission Act 2016 and, in particular, for or with respect to -
(a) the establishment, control, operation and maintenance of the system, and
(b) the registration of misconduct matters in the system, and
(c) the nature of the information about misconduct matters that is to be registered in the system, and
(d) the form in which any such information is to be entered into the system, and
(e) access to information in the system, and
(f) retention, amendment and deletion of material in the system, and
(g) security arrangements for the system, and
(h) mechanisms for identifying, preventing and detecting abuse, misuse or corrupt use of the system or information in the system.
(2) Protocols and memoranda of understanding may be entered into by the LECC and by the Commissioner regarding any matter for or with respect to which regulations may be made under this section.
(3) Any such protocol or memorandum is subject to the provisions of the regulations.
(4) A regulation made for the purposes of this section may create an offence punishable by a penalty not exceeding 50 penalty units.
129 Registration of misconduct matters
(1) The following must be registered in the misconduct matters information system -
(a) all police complaints, administrative employee complaints and agency complaints about the NSW Police Force received by the Commissioner and the LECC,
(b) such information about misconduct information as is required to be registered in the system by misconduct matters management guidelines.
(2) Despite subsection (1), the LECC may direct that information about a misconduct matter or a specified class of misconduct matters -
(a) is not to be entered in the misconduct matters information system, or
(b) is to be removed from the misconduct matters information system, or
(c) is to be entered or re-entered in the misconduct matters information system.
(2A) Despite subsection (1), information about a misconduct matter (or part of a misconduct matter) received by the LECC or of which it becomes aware that is not referred to the Commissioner is not required to be registered in the misconduct matters information system unless the LECC directs that a misconduct matter received by the LECC be entered in the system.
(3) The LECC Chief Commissioner, and such other officers of the LECC as are authorised in that regard by the Chief Commissioner, are to have unrestricted access to all information in the misconduct matters information system.
(4) The LECC Chief Commissioner may place a caveat on particular information registered in the system and, in that event, access to that information by other agencies and other persons is to be restricted in accordance with the terms of the caveat.
(5), (6) (Repealed)
Division 4 Dealing with misconduct matters
…
131 Dealing with misconduct matters
(1) As soon as practicable after the Commissioner receives (or becomes aware of) a misconduct matter, and at any time during a police investigation of a misconduct matter, the Commissioner may (except as provided by subsection (3)) decide as follows -
(a) to investigate or otherwise deal with the misconduct matter under this Part,
(b) to refer the misconduct matter to the LECC for consideration of whether or not it is to be investigated by the LECC or otherwise dealt with under the Law Enforcement Conduct Commission Act 2016,
(c) to take no further action under this Part with respect to the misconduct matter.
…
(2) A decision under subsection (1) may be made in respect of the whole or any part of a misconduct matter.
(3) The Commissioner must refer a misconduct matter received by the Commissioner or of which the Commissioner becomes aware that alleges, indicates or suggests that conduct of the Commissioner or a Deputy Commissioner is (or could be) officer misconduct to the LECC unless the misconduct has been referred to the Commissioner by LECC.
(4) The Commissioner is to take into account any misconduct matters management guidelines or recommendation of the LECC in deciding how to investigate or deal with the misconduct matter.
(5) If the Commissioner decides to refer a misconduct matter to the LECC, the Commissioner may recommend how the misconduct matter should be dealt with by the LECC.
(6) If the Commissioner decides that a misconduct matter that is a complaint does not need to be investigated, the Commissioner must notify the complainant of the decision and the reasons for it.
(7) Additional information from a complainant, and any existing information relevant to a misconduct matter to which the Commissioner can readily obtain access, may be used in making a decision concerning a misconduct matter.
(8) The making of a decision under this section is not an investigation of the misconduct matter to which the decision relates.
(9) The Commissioner may investigate or otherwise deal with any notifiable misconduct matter pending the making of a decision by the LECC under section 44 of the Law Enforcement Conduct Commission Act 2016.
[11]
Endnotes
A reference to St George Police Area Command formerly known as Kogarah Police Station
Detective Chief Inspector Scott Davis was the applicant's and Senior Constable Biswas' immediate manager
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
[12]
Amendments
27 June 2024 - Name of applicant anonymised in paragraphs 18, 32 and 42 to "the applicant"
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: 27 June 2024
By application dated 11 August 2023, the applicant seeks administrative review of the respondent's conduct which was the subject of his application for internal review made pursuant to s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
A case conference was held on 3 October 2023, at which a timetable was made for the filing of evidence and submissions, and for a hearing to be held on 24 January 2023.
On 30 October 2023, the respondent's solicitors wrote to the Tribunal stating:
It has now come to the respondent's attention that the information the subject of this application is not "personal information" within the meaning of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act"). The application concerns alleged dealings by the respondent with information concerning historical complaints against the applicant, which were dealt with under Pt 8A of the Police Act 1900. This kind of information is excluded from the definition of "personal information" under s. 4(3)(h) of the PPIP Act.
The Tribunal's jurisdiction to review the respondent's "conduct" under s. 55 of the PPIP Act, when a breach of an information protection principle ("IPP") is alleged, requires there to have been an alleged dealing with "personal information" by the respondent. Accordingly, if no "personal information" is alleged to have been dealt with by the respondent, there is no "conduct" to be reviewed by the Tribunal.
Having regard to the parties' obligations under s. 36 of the Civil and Administrative Tribunal Act 2013, the respondent considers that whether the subject information is "personal information" ought to be determined by the Tribunal as a preliminary matter. This is consistent with the Tribunal's approach when the issue has been raised [see EFL v Secretary, Department of Education [2020] NSWCATAD 239].
Consequently, on 13 November 2023, a further case conference was held. The timetable ordered on 3 October 2023 was vacated, and further orders were made for the parties to file submissions on the "preliminary issue" identified by the respondent.
For the following reasons, I have decided to dismiss the respondent's application that the applicant's application should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the basis that the Tribunal does not have jurisdiction to hear and determine the applicant's application.
Factual background
Before turning to the parties' submissions, it is appropriate to summarise the background facts to the applicant's application for administrative review.
The evidence discloses, and I find as follows.
The applicant is a police officer of some 34 years' standing.
In August 2015, the applicant was appointed as Investigations Co-Ordinator/Detective Sergeant to the respondent's Investigative Systems Support (ISS).
At 6.50am on 21 February 2023, the applicant had the following conversation with Senior Constable Md Omor Biswas:
BISWAS Met some people from PSC trying to get a secondment. They asked who my supervisor was. I told them it was you. You're famous there. Everyone knows your Taser history."
APPLICANT Oh yeah? Who were you talking to?
BISWAS They said you told a probationer to Taser a homeless guy sleeping on the street. They said the probationer knew it was wrong but did it anyway. You got decertified and the probationer got a tap on the wrist.
APPLICANT That's not what happened.
BISWAS They were saying that you can't be promoted because you wouldn't pass IAPro. You were decertified a few times when you were at St George. [1]
APPLICANT Who were you speaking to?
BISWAS Just a group of people from there. One of them said he was an ex-weapons instructor. He said in one of your Taser incidents he recommended you be decertified and charged. They were all laughing when they were telling me about it.
BISWAS One of them asked what rank you are now and when I told them, they said you wouldn't ever be promoted because of your complaint history. They said you wouldn't be suitable to supervise at a higher rank because of your Taser history.
At this point the conversation concluded, but recommenced again at about 8.20am as follows:
APPLICANT So this happened at PSC?
BISWAS No, it was at a coffee cart.
APPLICANT Who did you talk to?
BISWAS Forget it. They told me to keep it quiet.
APPLICANT When did you speak to them?
BISWAS Before I went to Bangladesh.
APPLICANT So you won't tell me who you spoke to?
BISWAS No. I can see you're getting agitated. Forget about it.
APPLICANT Well if you won't answer my questions, maybe you'll answer Scott's. [2]
Following this conversation, at 8.33am, after a brief text exchange between the applicant and Sergeant Nicole Burrow, the two had a telephone conversation, in which the applicant states that Sergeant Burrow gave him "some advice". The s 58 documents show that Sergeant Burrow told the applicant that the information that had been disclosed by Senior Constable Biswas and the information that the unknown officer provided to Senior Constable Biswas about the applicant was confidential.
Sergeant Burrow requested that the applicant complete either an email or a report outlining the conversation and forward it to his Commander. Following this conversation Sergeant Burrow spoke with Chief Inspector Holgate, the respondent's Professional Standards Manager of the Professional Standards Command (PSC).
Following this conversation on 27 February 2023 Sergeant Burrow sent the applicant a text relevantly stating:
BURROW Hey hun how are you? Did you submit the report to Mr Davis? My PSM is waiting on the report to flow through so he can keep an eye on it. …
APPLICANT Hi. Didn't send it to him. Just made my own notes.
BURROW Can you send through to me hun. I will start something this end as it's really concerning someone from PSC could possibly be doing this and divulging restricted and private information especially about investigations.
Later that day, the applicant sent Sergeant Burrow an email setting out his account of the conversation described at [10] and [11] above.
Sometime, presumably shortly after receiving that email (the s 58 documents do not disclose when), Sergeant Burrow made a report to Chief Inspector Holgate pursuant to s 211F of the Police Act.
Section 211F relevantly provides:
211F Members of NSW Police Force under duty to report misconduct of police officers
(1) A police officer who has reasonable grounds to suspect that another police officer has engaged in police misconduct or serious maladministration is under a duty to report that police misconduct or maladministration or alleged misconduct or maladministration in writing to another police officer who is of the rank of sergeant or above and is more senior in rank than the police officer with a duty to report (a senior police officer).
(2) The senior police officer to whom a report is made must report it in writing promptly to the Commissioner (or a police officer nominated by the Commissioner for the purposes of this section) if the senior police officer has reasonable grounds to suspect that the conduct (or alleged conduct) -
(a) constitutes (or would constitute) a criminal offence or is (or could be) other police misconduct or serious maladministration, or
(b) could provide sufficient grounds -
(i) for taking dismissal action against a probationary police officer under section 80 (3), or
(ii) for taking reviewable action under section 173 or making an order under section 181D.
Sometime after this, the s 58 documents do not disclose when, Senior Sergeant Luke Tsykalas of the PSC was appointed under s 131(a) of the Police Act to conduct to conduct an investigation into the following allegation:
it is alleged that an unknown officer from PSC has released complaint information about the applicant to Senior Constable Md Biswas.
On 27 March 2023, the applicant sent an email to the Office of General Counsel of the respondent and the Information and Privacy Commission (IPC) with the subject line "Breach of the Privacy and Personal Information Protection Act 1988" (27 March 2023 email).
The 27 March 2023 email commences with the statement:
I am hereby making a formal complaint under the Privacy and Personal Information Protection Act 1998 (PPIP Act). I am a Detective Sergeant with the New South Wales Police Force. I have been employed as a police officer with the organisation for 34 years.
The email then sets out the applicant's account of the conversations with Senior Constable Biswas on 21 February 2023. In addition, email relevantly states:
The details [Senior Constable Biswas] disclosed are accurate enough for me to believe the information came from a person or persons with intimate knowledge of my police complaint history. made contemporaneous notes about this conversation by sending myself an email to my work email address. I also contacted a Sergeant I know at PSC. That person advised me to report the matter to my Manager, DCI Davis.
About a week later, that PSC Sergeant advised they had lodged a written complaint through PSC on my behalf. That complaint is still in its early stages.
In relation to the disclosure of my personal New South Wales Police Force complaint history and the discussions surrounding this disclosure. I am hereby making a formal privacy complaint pursuant to The Privacy and Personal Information Protection Act 1998.
The information disclosed should not be considered as an exemption from the privacy principles citing 'law enforcement' as the disclosures were not made in the lawful exercise or official function of law enforcement.
The officer who spoke to me does not work for PSC nor does his role entitle him having knowledge of my complaint history.
On 3 April 2023, the applicant sent an email (3 April 2023 email) to the Office of General Counsel of the respondent with the subject line "IPC complaint". He attached a form titled "Privacy Complaint: Internal Review Application Form" (Application).
The Application described the conduct the subject of the applicant's request for internal review as:
Disclosure by PSC staff of my confidential complaint information to a colleague who is not entitled to know.
The Professional Standards Command or PSC (PSC) is a specialist command within the respondent that reports to the Deputy Commissioner, Investigations and Counter Terrorism.
On 13 April 2023, a senior legal officer from the Office of General Counsel, Mr Anthony Grey, (internal reviewer) wrote to the applicant (13 April 2023 letter) relevantly:
1. stating that he had been appointed to deal with the applicant's matter;
2. setting out the provisions of ss 53(3) and 45(1) of the PPIP Act;
3. stating that he was of the view that the 27 March 2023 2023 email did not satisfy the requirements of s 53(3)(b) of the PPIP Act as:
1. it was addressed to "To Whom It May Concern"; and
2. had been emailed to two agencies;
3. stating that the method of address, the inclusion of IPC as a recipient and the reference to the making of a "formal complaint" also raised the possibility that the 27 March 2023 email constituted a complaint to the IPC under s 45 of the PPIP Act;
1. noting that:
1. at the top of the Application there were boxes for the selection of the review to be applied for under either the s 53 of the PPIP Act or s 21 of the Health Records and Information Privacy Act 2002;
2. neither of the boxes have been marked;
3. the IPC has published advice that where it is not indicated on a Privacy Complaint: Internal Review Application Form whether the review as sought under s 53 of the PPIP Act or s 21 of the HRIP Act, the agency should proceed on the basis that it is a request for an internal review under the PPIP Act.
Consistent with the IPC advice the internal reviewer confirmed that the respondent accepted the Application "as a valid request" for internal review under s 53 of the PPIP Act.
The letter also noted that the Application did not provide space for the inclusion of a significant amount of detail about a complaint, and asked the applicant if in addition to the information set out in the Application, the applicant wished him to have regard to the information contained in the 27 March 2023 email, or any further information, for the purpose of undertaking the internal review.
On 13 April 2023, the applicant responded to the internal reviewer by email stating:
I acknowledge your email and attached letter. I don't see the need to hash out the specifics of whether my email and PPIPA application does or does not comply with a particular section. Suffice to say that I will operate on your confirmation that the application is a valid request for internal review under s. 53 PPIPA. I also confirm that I wish to have the information contained in my 27 March 2023 email considered as part of your review ...
Additionally, please advise if the following information would benefit in your review of the matter;
* The name and rank of the officer who disclosed the complaint information to me on 21 February 2023.
* The name and rank of an officer who was present during part of the conversation on 21 February 2023.
* The details of PSC staff who have knowledge of this matter.
* Provision of the email I drafted contemporaneously on the 21st February 2023 which I refer to in my 27 March 2023 email.
* The impact this disclosure has had on me and my partner.
* Details of the complaint matters discussed by the PSC staff and the individual from my office. This is important as it confirms what was said is accurate and factual for the most part.
* Any other information I can provide to assist.
On 14 April 2023, the internal reviewer responded, indicating that each of the items listed would be of assistance, especially those appearing as the first 5 bullet points.
On 30 May 2023, the internal reviewer wrote to the applicant relevantly stating that:
I understand that you would be aware that in addition to the internal review the NSWPF is conducting an investigation into a complaint of misconduct under Part 8A Police Act 1990.
I have been informed that the matters being investigated in the Part 8A investigation have substantial overlap with the matters being considered in the internal review. Due to this overlap I propose to seek access to the information obtained during the Part 8A investigation when that investigation is concluded
As indicated in my letter of 13 April 2023 the 60 day limit for the conduct of the internal review ends on 2 June 2023. The officer conducting the Part 8A investigation has informed me that the investigation is well advanced but that it is not expected to be completed by the 2 June 2023.
I have informed the Information and Privacy Commission NSW (IPC) of my intention to access the information from the Part 8A investigation. The IPC recommended that I contact you and seek your agreement to an extension of time to conclude the internal review.
I anticipate that I will be able to conclude the internal review by 30 June 2023 and I seek your agreement to extending the time to that date.
As noted, Senior Sergeant Tsykalas was appointed to investigate the conduct which the applicant reported to Sergeant Burrow. Senior Sergeant Tsykalas' report was not before the Tribunal. However, an Aide Memoire" dated 6 October 2023 prepared by Ms Philippa Moore of the respondent's Office of the General Counsel was filed by the respondent.
Ms Moore notes that Senior Sergeant Tsykalas' prepared "a rationale based" misconduct investigation report dated 7 June 2023 in response to:
a complaint made by the Professional Standards Command (PSC) in relation to an allegation of release of complaint information about the applicant to Senior Constable Omor Biswas by an unknown officer of the PSC.
Ms Moore then sets out the witness statements and Directive Memoranda of various police officers, and other information considered by Senior Sergeant Tsykalas.
Ms Moore then states:
Conclusions reached
22 The report recommended that the allegation is found to be not sustainable.
23 The investigator stated that he considered the invocation of s. 179 of the Law Enforcement Conduct Commission Act 2016 and recommended that the provisions of that section not be invoked.
24 The investigator accepted accountability and certified the investigation in terms of its quality, timeliness and completeness.
25 It was noted that there were no supervisory issues nor organisational issues identified.
26 The report was quality reviewed, which confirmed that the allegation was investigated and the conclusions of the investigator were sound. It was also confirmed that the information contained in the report was referenced to source material and did not include opinion or speculation. It was noted that no investigative actions or strategies remained outstanding and the reviewer agrees with the recommendations provided by the investigator.
27 The Commander of PSC certified the report.
28 The report was submitted for consideration by the Complaints Management Team.
Complaints Management Team
29 A CMT meeting was held on 8 June 2023 in relation to the complaint made. The investigator provided a briefing to the meeting attendees.
30 The outcome of the CMT meeting was that the allegation of unauthorised information/telecommunication or improper disclosure of information was held to be not sustainable.
31 No conflict or perceived conflict was identified during the investigation.
32 The investigator recommended that s. 179 of the LECC Act not be invoked Investigation endorsement was provided. They commented that all avenues of investigation were properly exhausted.
(emphasis added)
On 30 June 2023, the internal reviewer emailed the applicant to say that the IPC had requested that a copy of the internal review report be provided in draft to the IPC prior to being provided to the applicant. For that reason, the internal reviewer sought the consent of the applicant to extend the time for provision of the report to the applicant to 21 July 2023.
On 5 July 2023, the applicant responded by email to the internal reviewer's letter of 30 June 2023 stating:
I have no problem with the time extension. I am seeking a review of the complaint outcome anyway. I'm absolutely not satisfied with the limited avenues explored by the PSC investigator. He failed to address the details in my written statement but rather focussed on accesses to my complaint matters via electronic means. At no time did I allege that occurred. My allegations revolve around disclosures by a person or persons with personal knowledge of my complaint matters. The personal knowledge coming from their participation investigations in internal review panels and PSC related investigations.
On 20 July 2023, the internal reviewer provided his internal review (Decision) to the applicant. The internal review was structured into the following sections.
First, Section 1, being the Introduction.
Secondly, Section 2, titled "Scope", which referred to s 53 of the PPIP Act and noted that:
1. the purpose of an internal review is to determine whether any conduct amounted to a contravention of one or more Information Protection Principles (IPPs) set out in ss 8 to 19 of the PPIP Act;
2. the internal reviewer understood that the applicant's request for an internal review related to an alleged breach of IPP 5 (Retention and security of personal information; PPIPA, s 12) and possibly IPP 10 (Limits on use of personal information; PPIPA, s 17).
Relevantly, the internal reviewer stated at [2.25]:
This internal review will be limited to considering whether the conduct of the NSWPF alleged in your Application and in your Statement amounted to a breach of one or more of the IPPs.
Thirdly, Section 3, Relevant Legislation, which set out relevant provisions of the PPIP Act.
Fourthly, Section 4, Background. Here the internal reviewer stated:
4 Background
4.1 In the 27 March email, the Application and your Statement you refer to conversations that you had on the morning of 21 February 2023 with Senior Constable Biswas at the Sydney Police Centre, Surry Hills. The conversations are most fully set out in paragraphs 9 - 11 of your Statement, as follows:
9. At 6.50am, I was standing at my desk when Senior Constable BISWAS approached. He stood to my left and said, "Met some people from PSC (Professional Standards Command) trying to get a secondment. They asked who my supervisor was. I told them it was you. You're famous there. Everyone knows your Taser history."
I said, "Oh yeah? Who were you talking to?"
He didn't respond but he said, "They said you told a probationer (probationary constable) to Taser a homeless guy sleeping on the street.
They said the probationer knew it was wrong but did it anyway. You got decertified and the probationer got a tap on the wrist."
I said, "That's not what happened."
He said, "They were saying you can't get promoted because you wouldn't pass /APro. You were decertified a few times when you were at St George (Police Area Command - previously known as Kogarah Police Station).
I said, "Who were you talking to?"
He said "Just a group of people from there. One of them said he was an ex-weapons instructor. He said in one of your Taser incidents, he recommended you be decertified and charged. They were all laughing when they were telling me about it."
He said, "One of them asked what rank you are now and when I told them, they said you wouldn't ever be promoted because of your complaint history.
They said you wouldn't be suitable to supervise at a higher rank because of your Taser history."
10. Eventually he walked away and returned to his desk. I immediately opened a new window in my work emails and started typing notes about what was said. I was extremely angry and upset about that conversation.
11. At 8.20am, I walked to the area where Senior Constable BISWAS and Senior Constable HOBSON sit. I said to Senior Constable BISWAS,
So this happened at PSC?"
He said, "No, it was at a coffee cart." I said, "Who did you talk to?"
He said, "Forget it. They told me to keep it quiet."
I said, "When did you speak to them?"
He said, "Before I went to Bangladesh."
I said, "So you won't tell me who you spoke to?"
He said, "No. I can see you're getting agitated. Forget about it."
I said, "Well, if you won't answer my questions, maybe you'll answer Scott's." (Scott is Detective Chief Inspector Scott DAVIS who is our immediate manager.)
4.2 Following the above conversations taking place you sent a text message to Sergeant Nicole Burrow who holds the position of Case Officer Internal Witness Support Officer, Professional Standards Command and later in the morning you spoke with Sergeant Burrow by phone. During this conversation with Sergeant Burrow you discussed the matter with her and she gave you some advice. (paragraph 21 of your Statement)
4.3 On 27 February 2023, the following texts were sent between Sergeant Burrow and you (paragraph 22 of your Statement):
Hey hun how are you? Did you submit the report to Mr Davis? My PSM is waiting on the report to flow through so he can keep an eye on it. Hope it's started to settle down at work. Take care and chat soon. Cheers Nikki
Hi. Didn't send it to him. Just made my own notes.
Can you send something to me hun. I will start something this end as it's really concerning someone from PSC could be doing this and divulging restricted and private information especially about investigations. Its departmental at this stage so you and the senior Connie would get Ms and the (end of copy text provided).
Also on 27 February 2023 you sent an email to Sergeant Burrow attaching an email prepared by you on 23 February 2023 relating to the conversations between Senior Constable Biswas and you on 21 February 2023 (paragraph 22 of your Statement).
…
4.5 In accordance with s.211F [of the] Police Act Sergeant Burrows prepared a report in relation to the matter.
4.6 Senior Sergeant Luke Tsykalas of PSC was appointed under s.131(a) [of the] Police Act 1990 to conduct to conduct an investigation into the following allegation (the allegation):
it is alleged that an unknown officer from PSC has released complaint information about the applicant to Senior Constable Md Biswas.
4.7 Senior Sergeant Luke Tsykalas prepared the Part 8A Report for consideration of the CMT.
The reference to "CMT" is a reference to the Complaint Management Team. I understand that the CMT is responsible for assessing complaints and determining the level of investigation; monitoring and reviewing complaints through to completion and assigning appropriate actions in resolving complaints: see the Law Enforcement Conduct Commission Report, Operation Shorewood: Review of how the NSW Police Force manages and investigates workplace equity matters published in July 2020 at p 6.
Fifthly, Section 5, titled "My Findings". The internal reviewer's findings were that:
1. the respondent had securely held the applicant's personal information ([par 5.1]);
2. the respondent had not disclosed the applicant's personal information ([par 5.2]);
3. the respondent had not used the applicant's personal information outside of the reasons for which it was collected ([par 5.3]);
Sixthly, Section 6, being "Reasons for my findings". Here the internal reviewer sets out over some 7 pages detailed reasons for:
1. concluding, in relation to IPP 5, the respondent had complied with the requirements of s 12(c) of the PPIP Act to ensure that personal information relating to employee misconduct was protected, by taking such security safeguards as were reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse;
2. stating that, in relation to IPP 11 (Limits on disclosure of personal information, PPIP Act, s 18) at [6.20]:
6.20 The internal review that I am undertaking under s.53 of the [PPIP] Act is separate from the investigation undertaken by Senior Sergeant Tsykalas under Part 8A [of the] Police Act.
However, in respect of your complaint regarding disclosure of your personal information in breach of IPP 11, the factual enquiries conducted by Senior Sergeant Tsykalas for the purpose of preparing the Part 8A Report are also relevant to your IPP complaint. The information obtained by Senior Sergeant Tsykalas included information obtained by the issue of Directive Memorandums, which is not a means available to me in conducting an internal review. I consider that the Part 8A Report contains more information relevant to your IPP complaint than would have been otherwise available to me in conducting a s.53 internal review.
1. concluding that, in relation to IPP 10, Constable Biswas' conduct as alleged by the applicant would not constitute a "use" of the applicant's personal information, the internal reviewer relying on Department of Education and Training v MT [2006] NSWCA 270 at [41] - [44].
Seventhly, Section 7, "Action to be taken by the Agency". Here the internal reviewer states that, having regard to his findings, no further action will be taken on the matter.
On 11 August 2023, the applicant filed his application for administrative review of the Decision with the Tribunal.