GHZ v Commissioner of Police, New South Wales

GHZ v Commissioner of Police, New South Wales - [2024] NSWCATAD 377 - NSWCATAD 2024 case summary — Zoe

[4]

Laying of charges

The first question for determination is whether any matter involving the laying of criminal charges gave rise to a breach.
The Applicant's submission is that collection of personal information about the Applicant in relation to the laying of charges occurred by unlawful means. She relies on s 10 and 11 of the PPIP Act containing the IPPs she claims the Respondent has breached.
The Respondent, however, relies on s 27 of the PPIP Act in support of her submission that even if any alleged breach occurred, compliance on her part with the relevant IPPs was not required. Section 27 of the PPIP Act provides as follows: "27 Specific exemptions for certain law enforcement agencies (1)Despite any other provision of this Act, the following are not required to comply with the information privacy principles - ….. (h) the NSW Police Force. (2) However, the information protection principles do apply to a public sector agency mentioned in subsection (1) in connection with the exercise of the agency's administrative and educative functions".
The effect of s 27, as it applies to the NSW Police Force, is that it relieves the NSW Police Force from compliance with the relevant information privacy principles. However, this is subject to subsection (2) which provides that the information protection principles do apply in connection with the exercise of "administrative and educative functions". The issue for determination is whether the Respondent's handling of personal information about the Applicant in laying charges falls within s 27(2).
What is meant by an "administrative" function fell for consideration in AEC v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 30. The Appeals Panel of the Administrative Decisions Tribunal said: "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".
It is accepted that what are "administrative functions" are not, however, limited to corporate services such as records management. The routine provision of information with nothing more may answer the description of an "administrative" function, for example for the purposes of a routine application for a national criminal history check (CTU v NSW Police Force [2017] NSWCATAD 204, at [4] and [19]) or in determining an access application under the Government Information (Public Access) Act 2009 (NSW) (Field v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 153, at [83]).
In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 (followed in EEQ v Commissioner of Police [2020] NSWCATAD 253), the President of the Administrative Decisions Tribunal said at paragraphs [27] - [29]: "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 be 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 cannot 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".
What the Respondent did in laying charges, including investigations leading up to the laying of charges, did not, in my opinion, fall within an "administrative" function as described in HW. The Respondent's actions in investigation and the laying of charges were not matters of internal administration. What the Respondent did went to its "core" responsibilities. These were actions forming part of the official and public functions of the NSW Police Force.
Further, the laying of charges was clearly not an "educative" function within the meaning of s 27(2). This function refers to "the work that the Police Service does in connection with community and school education programs, as well as in relation to its internal education and training programs" (HW, at [31]).
It follows that s 27(2) applies as submitted by the Respondent, with the result that there was no requirement for the NSW Police Force to comply with relevant IPPs in performing its function of investigation and laying charges in this matter.

[5]

Court proceedings

The Applicant's complaint arises out of the placing by the Respondent of information about her history on the COPS system, following the laying of charges and the Applicant's subsequent appeal to the District Court. I understood the Applicant's contention to be that s 9 of the PPIP Act was contravened because information about her was not collected directly from her and further that an appropriate collection notice was not given, contrary to s 10 of the PPIP Act. She also submits that a contravention of s 11 occurred because the information collected was not accurate.
To the extent that the Respondent had information automatically placed on the COPS system, the Respondent submits that the function in question fell within section 27(1) because doing so was not of an "administrative or educative" function.
The Respondent's evidence was that the Department of Communities and Justice has a system known as "Justicelink" which manages court proceedings, listings and orders. In relation to criminal proceedings, the evidence was that there was an electronic exchange of information between COPS and Justicelink for all criminal proceedings, including criminal appeals. The information to be shared could be provisioned automatically, which will load electronically into COPS or can be entered manually into COPS.
The transmission of the relevant information through Justicelink, in my opinion, is not merely an administrative function in the circumstances at hand. It was part of the function of providing information for the hearing of the matter in the Local Court and the appeal to the District Court. The provision of that information was a necessary part of the operation of the proceedings and not simply something in the nature of records management. Consequently, I find that by reason of s 27(2), no contravention of the information protection principles set out in ss 9, 10, 11 or any other information protection principle occurred by reason of the transmission of the information in question to COPS, relevant to the Local Court and District Court proceedings.

[6]

Department of Education

The Applicant submits that breaches of the PPIP Act occurred as a result of disclosure on 7 June 2022, to the Department of Education of the Applicant's then pending charges. In the event of any breach, the Respondent, for her part, relies upon the exception allowed to the Respondent from compliance with ss 10, 18, or 19 of the PPIP Act, where expressed consent is given to the disclosure in question. The terms of that exception are set out in s 26(2) of the PPIP Act. If relevant, the Respondent also relies on s 19(2)(b) of the PPIP Act.
The Respondent relies on the "Nationally Coordinated Criminal History Check Application and Informed Consent Form" dated 27 May 2022 signed by the Applicant to establish consent. The Applicant, on the other hand, submits that the relevant form should not be taken to be consent on the basis of her understanding that on signing, she did not provide that consent.
The "Nationally Coordinated Criminal History Check Application and Informed Consent Form" states that the relevant criminal history check is conducted with "your informed Consent to determine your suitability for employment, a position of trust or as required by legislation. A Nationally Coordinated Criminal History Check contains your personal information, and any relevant police information about you, according to the purpose of your Nationally Coordinated Criminal History Check." It also states that police information is disclosed in accordance with applicable "spent conviction legislation". Page 6 of the document expresses consent to police information relating to the Applicant being disclosed "in accordance with the purpose identified in this form, and applicable legislation and information release policies". The form is signed or initialled by the Applicant on page 7. It expressly contemplates disclosure to the Department of Education on page 6.
The Respondent provided evidence as to how the system for a National Coordinated Criminal History Check operated. The Australian Criminal Intelligence Commission ("ACIC") provided and controlled access to the national police checking service. The evidence was that the NSW Police Force uploads criminal records from COPS onto the national police checking support system. An individual or organisation seeking a national police check is required to submit their application through an ACIC accredited body or through an Australian police agency. The Australian police agencies such as the NSW Police Force have an online National Police Check portal which provides an opportunity for individuals to apply directly to the NSW Police Force for their national police checks. The Department of Education and the OCG, for their part, are accredited bodies that are approved by ACIC to have access to the service to request a Nationally Coordinated Criminal History check for an individual.
There is no evidence that the Applicant knew the precise workings of the system described above for a Nationally Coordinated Criminal History Check. However, having stated on the form in question that consent was given, it is difficult to see, how what is shown on the face of the document the Applicant signed or initialled, should not be taken to be evidence of the required consent. The form clearly states that "informed Consent" is given. This is sufficient, in my opinion, to evidence that consent was given for disclosure to the Department of Education, regardless of whether or not the Applicant knew of the details of the workings of the system. That express consent excuses the Respondent from compliance with the relevant IPP when disclosing information within the terms of the consent given. Accordingly, I find that the exception that the Respondent relies upon under s 26(2) of the PPIP Act is established.
The Nationally Coordinated Criminal History Check Application and Informed Consent Form in evidence states that police information is disclosed in accordance with applicable "spent conviction legislation". The Applicant appears to rely on this statement in support of her submission that she did not consent to disclosure of the charges laid against her. However, the statement concerning "spent conviction legislation" does not appear to have any relevance to the matter at hand because there was no "conviction" against the Applicant that later became a "spent conviction" within the meaning of the Criminal Records Act 1991 (NSW) or as otherwise understood. The charges against her were not proved and dismissed without any conviction.

[7]

Office of Children's Guardian

The Applicant submits that the two disclosures to the OCG contravened s 18 or s 19 the PPIP Act. The Respondent, on the other hand, submits that she was authorised by legislation to make disclosure and alternatively, that the Applicant consented to national police checks when she applied for a Working With Children's Check following the dismissal of the charges against her.
Under s 25(a) of the PPIP Act, an exception applies to compliance with ss 9, 10, 13, 14, 15, 17, 18 or 19, where an agency is lawfully authorised or required not to comply with the principle concerned. Section 33 of the Child Protection (Working with Children) Act 2012 (NSW) ("CPWC Act") provides as follows: "33 Notification of offences and other information (1) The Commissioner of Police is authorised at any time, in accordance with this Part and the regulations, to disclose (or arrange for a member of the NSW Police Force to disclose) to the Children's Guardian the following information - (a) information relating to any matter that may cause a person to be a disqualified person or result in an assessment requirement affecting a person, (b) information relating to the criminal history of a person, (c) without limiting paragraph (a) or (b), information relating to the circumstances of an offence or other matter disclosed under this section. (2) (Repealed) (3) This section does not limit the persons to whom, or the circumstances in which, information relating to the criminal history, including the criminal record, of persons may be disclosed apart from this Act. (4) Information about a person's criminal history may be disclosed under this Act - (a) whether or not the information relates to events that occurred when the person was under the age of 18 years, and (b) whether or not the information relates to offences that cause or may cause the person to be a disqualified person or result in an assessment requirement affecting the person".
What is the "criminal history" of a person is defined in s 5C(1) to include "criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged".
I am in agreement with the Respondent's submission that 5C(1) captures information in respect of the proceedings in the Local Court, as information relating to the "criminal history" of the Applicant. "Criminal history" is defined to include criminal charges that have been dismissed.
The Respondent accepts that the appeal to the District Court, as originally disclosed to the OCG, was not "criminal history" as defined, there being no criminal charges pending or proved at the time of the appeal, the charges having been dismissed. However, I accept the Respondent's submission that the matters before the District Court came within the description of "information relating to the criminal history of a person" within the ambit of s 33(1)(b), as the appeal "related to" the previously laid criminal charges, coming about about as a result of those charges, even if at the time of the appeal, those charges had been dismissed.
Section 25 excuses the Respondent from compliance with the relevant information protection principles where it is "lawfully authorised" not to comply.
Section 33 of the CPWC Act "authorises" relevant disclosure to the OCG. It does not, however, describe that authorisation in terms that expressly excuses compliance with the relevant IPPs. Equally, there are no limitations expressed on the reach of the relevant authorisation. I do not see that there is any warrant to imply any such limitation, having regard to the purpose of s 33 as evinced by the language of the provision. That purpose is to authorise free disclosure to the OCG rather than more limited disclosure. I find that the disclosures made to the OCG was, accordingly, authorised under s 33 of the CPWC Act in a manner that did not require compliance with the relevant IPPs and that as a consequence, that authorisation is one that falls within s 25(a) of the PPIP Act.
I accept the Respondent's submission that the Applicant also consented to the disclosure of the relevant information, having applied for a Working With Children's Check. I infer that the application would not have been granted without that disclosure and the Applicant's consent to that disclosure. That consent by reason of s 26(2) excuses the Respondent from complying with the relevant information protection principles set out ss 10, 18 or 19.

[8]

Accuracy of information

A question of the accuracy of information disclosed also arises. The information that was disclosed to the OCG, included, on the first occasion, a pending appeal to the District Court. There was a notation in the material disclosed that Local Court charges had been dismissed but were the subject of an "ALL GROUNDS APPEAL". The appeal, however, was only in respect of costs.
The Respondent accepted that the information in question disclosed to the OCG was inaccurate. The terms of the disclosure suggested that the prosecutor had brought an appeal, even though it was the Applicant herself who had appealed and done so in respect of costs only. The Respondent accepted that the impression the information provided was that the charges had not been finally determined in the Applicant's favour and that this impression was not correct.
While the PPIP Act itself requires agencies to check the accuracy of information before "use", the Respondent's submission was that it said nothing about checking accuracy before "disclosure". In the Respondent's submission, s 18 and 19 should be understood as not bringing to bear any such requirement. The Respondent relies on the decision in AIN v Medical Council of New South Wales [2017] NSWCATAP 23, that s 16 did not apply to external disclosures of information.
Requirements for accuracy are set out in a number of provisions of the PPIP Act. Section 11 relevantly requires that an agency must take such steps as are reasonable in the circumstances to ensure that the information "collected" is "accurate". Section 15 requires the relevant holder of information at the request of the individual to whom the information relates, to make appropriate amendments to ensure that the personal information it holds is accurate. Section 16 relevantly requires the holder of personal information not to "use" the information without taking such steps as are reasonable in the circumstances, to ensure that the information is "accurate" and "up to date".
Section 11 deals with "collection" of information, s 15 requires the making relevant amendments to information and s 16 applies to the "use" of information. In each case, the relevant requirement for accuracy is set out in the provision. There is, however, no such provision expressly requiring accuracy, when information is "disclosed", even if there are specific provisions governing disclosure such as ss 18 and 19. Having regard to the statutory context that includes specific provisions dealing with disclosure which do not require accuracy when disclosing information, I am in agreement with the submission of the Respondent that s 16 is not intended to apply in respect of the disclosure of information to external parties.
I am also unable to find that a breach of s 11 has occurred in the collection of information. Even if the information collected was for a period of time inaccurate, s 11 applies in cases of "personal information" collected "from an individual". On the facts before the Tribunal, it appears that the incorrect information concerning the history of the proceedings recorded after the appeal to the District Court, was not collected "from an individual" being the Applicant, but originated from the laying of charges by the Respondent. This was not information collected from the Applicant but information about the legal process generated by the Respondent.
The Applicant also claims breaches in relations to s 14 and 15. The Respondent submits that even if the alleged breaches did occur, that it is not required to comply because the functions in question were not "administrative" or "educative functions" such that exemption in s 27(1) applied. I agree with this submission for the reasons set out at [31] and [32] above.
I do not find any breaches of any other IPP not considered above.

[9]

Expungement

The information recorded in the Respondent's data system as at the time of hearing of this matter by the Tribunal was not inaccurate. That information showed that the Applicant had been the subject of two charges of "COMMON ASSAULT" in the past which had been dismissed. She seeks that these records be expunged so that a search will show no information concerning these matters in the future.
There is no dispute that the Applicant has, under s 15, the right to request amendments to information held by the Respondent concerning her to ensure that the information is accurate. The Tribunal, further, has the express power under s 55 of the PPIP Act to make an order requiring personal information that has been disclosed "to be corrected by the public sector agency".
However, in circumstances where the information in issue is no longer inaccurate, the Tribunal does not have the power under s 55 to make an order requiring a correction. I am not aware of any other power the Tribunal has under the PPIP Act, that could allow the Tribunal to order the deletion or expunging of the information in question.
It is, however, unsatisfactory, that the Respondent's database, for a period, contained inaccurate information concerning the District Court proceedings in question, that allowed an inference to be drawn that the status of the criminal charges against the Applicant remained unresolved, after a point in time when those charges had in fact been dismissed. It is also unsatisfactory that as a consequence, inaccurate information was conveyed to the OCG, even if subsequently the error was corrected by the Respondent.
I note that the Respondent has expressed regret for the inaccurate information and its conveyance to the OCG. The Respondent was correct in doing so. The Tribunal notes for the record that expression of regret.
It is also clear that the circumstances surrounding the charges in question have cause significant distress to the Applicant and that that distress in part arises out of the history of the charges recorded on the Respondent's data system together with the ability to carry out a search and find that history.
However, in circumstances where I have found that no breach of the PPIP Act has occurred for the reasons set out above, I am not aware of any remedy under the PPIP Act available to the Applicant that the Tribunal can grant.
The Applicant claimed that the charges laid against her had no basis and accordingly that the records kept by the Respondent should not be "misleading". Her submission was that the records ought to show that no charges should have been laid. However, it is not within the jurisdiction of the Tribunal to determine the question of whether or not the charges laid against the Applicant had a proper basis at law. The Tribunal, however, notes for the record, that the charges were dismissed by the Local Court.

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Judgment (12 paragraphs)

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Legislation Cited (6)

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