NZ v Commissioner of Police, NSW Police [2006] NSWCA 270 | Case summary

REASONS FOR DECISION 1 On 15 August 2006, the applicant, NZ, who suffers a disability of agoraphobia and social phobia, wrote to the respondent seeking an 'urgent request' for an internal review under the Privacy and Personal Information Protection Act 1998 ('the Privacy Act'). The subject of the applicant's internal review request was a letter, dated 9 August 2006, that she had received from Inspector J. O'Reilly in respect to a complaint that she had made to police about the conduct of her neighbour. It would appear that NZ had made this complaint to her local police station as she wanted police to make an application for an apprehended violence order ('AVO') prohibiting her neighbour from approaching the entrance of her apartment and engaging in specified conduct. 2 When the applicant received no response to her internal review request, on 5 December 2006, she filed an application for external review with the tribunal. When the matter came before the tribunal at the first planning meeting, the respondent contended that the applicant's internal review request did not identify conduct that fell within the terms of ss.52 of the Privacy Act and on this basis the tribunal had no jurisdiction to hear and determine the applicant's application. At this planning meeting, it was agreed between the parties that this was an issue that should be determined by the tribunal as a preliminary issue and that the tribunal was to determine it on the papers. In accordance with usual practice, the tribunal made orders for the filing and serving of evidence and submissions in respect to this preliminary issue. Relevant legislation 3 The Privacy Act regulates the conduct of public sector agencies in connection with the collection, storage, processing, use and disclosure of personal information. The term 'personal information' is defined in s.4(1) of the Act to mean "information or an opinion (including information or an opinion forming part of a data base 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." 4 The collection, storage, processing, use and disclosure of personal information is regulated by means of prescribed standards that are to be met by public sector agencies when collecting, storing, processing, using and disclosing personal information. These standards are described as "Information Protection Principles" ('IPPs') and are contained in ss.8 to 19 of the Privacy Act. These standards are not absolute in that they are subject to various exceptions and qualifications. 5 SS.8 to 11 relate to the collection of personal information. The remaining sections relate to personal information that is 'held' by a public sector agency, which is defined in s.4(4) of the Privacy Act. 6 The mechanism for enforcement of the IPPs is set out in Pt 5 of the Privacy Act at ss52-56. Section 52, relevantly, provides: '52(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, ...' 7 Section 53, relevantly, provides: '53(1) A person [ the applicant ] who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.' 8 S.53(3) requires an applicant for review to make his/her application in writing and addressed to the public sector agency concerned. S.53(6) provides that the public sector agency is required to complete the review as soon as it is reasonably practicable in the circumstances, and in any event no longer than 60 days from the day on which an application for review had been received. 9 An internal review applicant who is not satisfied with either the findings of such an internal review or the action taken by the public sector agency in respect to the alleged contravening conduct, may apply to the tribunal for a "review of the conduct": see s.55 of the Privacy Act. That is, the subject of review by the tribunal is the alleged conduct of the respondent public sector agency: see NZ v Director General, Department of Education and Training [2006] NSWCA 270 at [38]. Furthermore, that alleged conduct must be conduct which is alleged to contravene one or more of the IPPs, namely the respondent public sector agency's conduct in collecting, storing, processing, using or disclosing personal information of the review applicant. 10 On review of the alleged conduct, the tribunal is given power to decide not to take any action on the matter or to make orders which include orders for compensation and orders requiring the public sector agency to do or restrain from doing certain things: see s.55(2) of the Privacy Act. Issues 11 The primary issue in this application is whether the applicant in her application for internal review under s.53 of the Privacy Act identified conduct that could be described as conduct of a contravention by the respondent agency of an IPP that applies to the respondent. 12 As mentioned above, the subject of the applicant's internal review request was the fact that Inspector O'Reilly had sent her a letter on 9 August 2006 and the contents thereof. There does not appear to be any dispute that the conduct of Inspector O'Reilly in sending the letter to the applicant was conduct by him in the ordinary course of his duties as a police officer of the NSW Police Service. However, this fact alone does not appear to be the subject of the applicant's internal review request. The essence of her internal review request is to be discerned from the contents of the letter. Accordingly, it is necessary to briefly set out its main contents and the applicant's internal review request. Inspector O'Reilly's letter 13 In his letter to the applicant Inspector O'Reilly said the following: "Dear Ms [NZ], I am writing to advise you that, contrary to claims made by you, I have found no evidence in the current enforceable protection orders relating to you. I also wish to advise you that police from this Local Area Command will not be applying for any apprehended personal violence orders on your behalf, on the basis of any complaints made by you to date. …[reasons for the decision]. … I am requesting that you no longer send facsimiles to this Command. On a number of occasions you have disabled our facsimile machine by sending voluminous and irrelevant documents which have caused significant disruptions to the Command. … I consider that it is in the public interest to advise you that no further facsimiles will be accepted from you. I feel it prudent, however, to caution you that any complaints which you might make that are found to be false will be prosecuted under section 547B(1) of the NSW Crimes Act. Similarly, any Court orders or affidavits found to be false or misleading will be prosecuted under section 30 of the NSW Oaths Act or other appropriate legislation. I have considered your psychiatric condition, as described by you in telephone conversations, and would like you to clearly understand that I am in no way denying you access to policing services. Should you wish to communicate with police, [name of police station] can be contacted on [telephone number] or in the case of an emergency, I would advise that you call the '000' emergency number for assistance. Should you wish to discuss any aspect of this letter, please feel free to telephone me … Yours faithfully, J. O'Reilly, Inspector" The applicant's internal review request 14 In her request for internal review the applicant stated as follows: "NSW POLICE [name of station] HEALTH & SAFETY COMPLAINT PRIVACY ACT BREACH ON PART OF MR O'REILLY [name of station] POLICE OFFICER 15 August 2006 Re: URGENT REQUEST: I need INTERNAL REVIEW for (Mr O'Reilly he sent me PRIVACY BREACH LETTER 9 AUGUST 2006 AND THAT TO MY PHONES AS WELL. I need the Internal Review for me please as this cause me suffering police privacy breach threats to me damages my health and places me at risk cause me suffering. The officer Mr O'Reilly he abuse me highly humiliating, insult, harassing, psychologically depressing abusive "false allegations" privacy and discrimination letter to me which is, distressing letter, abuse privacy breach letter 9 August 2006). … … [I] ask, for internal review as Mr O'Reilly has sent a officer to deliver this to me without even according me any legal rights to justice before doing so and advising me not to contact the station by fax when I must do for my illness as due to illness I cannot go to see police in person or at my home. I did as Mr O'Reilly asked me to do sent him my AVO complaint but then he started to change abuse me on my phone and had a officer come bring me this letter abuse 'false allegations'… I ask you to send me internal review for this as I invited him to my home to help me do my AVO for the service he denied me this right when he knows I cannot speak to him face to face in my own home due to my disability. … I wish you to provide me the actual evidence as to Internal Review for this insulting abuse letter which is serious privacy act 1998 breach against me and contains 'false allegations' from him which is in breach of my personal privacy rights … …[He] called me discussing abuse and insult to my good name on the phone and other abuse comments to deny me my AVO rights for AVO service of my AVO complaint that I had to force myself to do 22 March 2006 AVO complaint. Then he denied me this right and mentally abused me within insult terrible things to me on my phone… In fact, then he sent me the abuse letter told me not to fax when without this I would end up worse… [He] told me not to fax and threatened if I do he would ring Telstra and ban my phone but this is privacy breach as the phone is my son's. He is my sold (sic) carer and put the service for my medical condition as due to illness I cannot leave home to go to my own doctor's to get my therapy. So, not having my phone on would be worse for me and I could not fax out to my doctors who failed to take that into account and it would cause me suffering not to contact my doctors if he would to enforce his threats to this privacy breach of the PPIP Act 1998. So, since this I cannot fax to this station in fear he would enforce that threat to his abuse to me in my vulnerable state and that would cause me totally worse devastation for me, I could not ring my doctors, that would detriment my health and safety… … I must have phone and fax all the time while he is causing me hardship privacy breach to cause me suffering when that is desperate the only thing I have to contact the outside world is phone and fax when it is for my illness and doctors and son to help me increase for me to do ongoing therapy and to improve my condition for my doctors. So, he caused me privacy breach forcing that to me which I cannot tolerate or comply to do or meet that requirement at all. … The officer he also taken my medical condition details ONLY by telephone and denies me rights to taken my actual MEDICAL REPORTS from all my doctors that I sent him for my AVO service even into account he told me he does not that, when I sent it as my supporting AVO assault evidence he denied me help and safety rights and privacy. …Thank you [NZ] The respondent's case 15 The respondent filed short written submissions on the preliminary issue. In those submissions the respondent identified the following conduct as being conduct complained of by the applicant in her internal review request: (a) the defective administration by the police in respect of investigating whether to apply for an apprehended personal violence order "APVO" on her behalf; (b) false allegations against her in respect of making false complaints; (c) failure to be sensitive to the applicant's medical condition. 16 In respect to each of the above, the respondent contended that they did not come within the ambit of the Privacy Act or the Health Records and Information Privacy Act 2002 in that they did not identify conduct that breached or contravened the provisions of either Act. The applicant's case 17 The applicant provided the tribunal with numerous documents in support of her application. These documents include reports from psychologists, psychiatrists and medical practitioners who have treated NZ in recent years. These documents make reference to NZ's illness and how past AVO orders made against her and the failure of police to make AVO applications on her behalf have caused her additional distress. NZ marked some of these documents as having been ignored by Inspector O'Reilly. In particular, those that indicated that her illness was such that she could not attend court for the purpose of a hearing or a mediation to resolve any complaint she had. 18 There were also copies of documents from NZ's former lawyers concerning AVO applications made against NZ and extracts of decisions of the tribunal where NZ was an applicant. 19 From the material provided it would appear that NZ, who is the occupant of an apartment that has been allocated to her by the Department of Housing, has complained about rubbish being left by other tenants on the landing outside her apartment. In the past she has taken steps to have that rubbish removed and she has sought an AVO against a neighbour whom she believes to be responsible for that rubbish. In June 2006, NZ prepared a written statement for police concerning a more recent event where she states she heard and then saw her neighbour interfering with the screen door to her apartment. When she opened the door she saw a pool of honey on the carpet right outside her door and underneath the security screen. It would appear that it was on the basis of this statement that NZ had requested the police to make an application for an AVO on her behalf. She stated that the reason she had sought assistance from her local command was because her health condition meant she was unable to do that herself. 20 NZ provided 15 pages of written submissions in reply to those that had been filed by the respondent. She also provided additional documents and 4 photographs. The applicant asserts that the letter sent to her by Inspector O'Reilly contains personal information coming within the terms of s.4(1) of the Privacy Act in that it names her and contains her address. She goes on to state that sending the letter was an incorrect use of her personal details as it identified with her "false allegations" which were serious and life threatening to her. These "false allegations" she asserted were such that they discredited her good character and that Inspector O'Reilly had discredited her through these "false allegations" with other police. She then went on to identify those matters, which she asserted were incorrect. These were set out under three headings, defective administration, false allegations in complaint, and failure to be sensitive to medical conditions. It is unnecessary to set out each of the matters referred to as are repetitive and are adequately covered in her internal review request set out above. Considerations 21 While the applicant has asserted that the letter from Inspector O'Reilly breach the Health Records and Information Privacy Act 2002, I have not considered this any further as the applicant has failed to identify how that Act has been breached nor has she made a complaint to the Privacy Commissioner in regard there to: see s.48 of the Health Records and Information Privacy Act 2002. 22 It is not disputed that the tribunal's jurisdiction to hear and determine an application for review under the Privacy Act arises under s.53(1) of the Privacy Act (see also s.38 of the Administrative Decisions Tribunal Act 1997). As mentioned above, that jurisdiction is to review "conduct" that falls within s.52(1) of that Act, including conduct that contravenes an IPP as set out in the Act (i.e. "relevant conduct"). Furthermore, a pre-requisite to the tribunal's jurisdiction is that the applicant has sought internal review of "relevant conduct". 23 As mentioned above, the question in this application is whether the applicant's internal review request is a request seeking review of "relevant conduct". If it is, then by reason of s.53(6) of the Privacy Act the respondent's failure to conduct an internal review of that "relevant conduct" within 60 days gives the tribunal jurisdiction to hear and determine the applicant's application for external review. 24 If the applicant's request for internal review is not a request for review of "relevant conduct" then the pre-requisite to the tribunal having jurisdiction to hear and determine her application have not been met. 25 In GL v Director General, Department of Education & Training [2003] NSWADT 160 Deputy President Magistrate Hennessy considered whether an applicant for review under the Privacy Act on the basis of s52(1)(a) is required identify the specific IPP that he/she alleges to have been contravened by the public sector agency. At [26] the Deputy President stated the following: "While the conduct listed in s.52(1) is the only conduct that the agency or the tribunal can review, there is no express or implied requirement for an applicant to identify the precise contravention on which he or she relies. If the contravention is not specified, it is up to the agency, or the tribunal to identify the relevant contravention with the assistance of the applicant. Apart from rejecting the respondent's submissions as a matter of statutory construction, there are compelling practical considerations for rejecting it. Applicant will not normally have the benefit of legal advice and it is unrealistic in many cases to require them to interpret and apply statutory provisions. While I acknowledge that it may be difficult for a respondent to review conduct without knowing which provision has allegedly been contravened, this can be addressed by discussing the matter with the applicant. Alternatively, the respondent may be able to anticipate from all of the circumstances of the case the nature of the alleged breach." 26 In that application the applicant, a school teacher, had sought internal review of the respondent agency in using and disclosing personal information about her that had been collected by the principal of a former school where she had been teaching to the principal of the new school she was teaching at. In her application for internal review (see [10] of decision) the teacher asserted that the conduct in question was a breach of specified provisions of the respondent agency's Privacy Code of Practice. While such conduct comes within s.52(1)(b) of the Privacy Act, at the time the alleged conduct had occurred, there was no such Code of Practice applicable to the respondent in that application. The Tribunal however upheld the validity of the applicant's internal review request as the breaches could equally be described as a breach of an equivalent IPP in the Privacy Act. That is the tribunal was able to identify from the terms of that applicant's internal review request that she was seeking review of "relevant conduct". 27 I followed the reasoning of the Deputy President in JD v Director-General, NSW Department of Health [2004] NSWADT 7. In that application JD had sought review of the manner in which the respondent agency had collected and used personal information about him for the purpose of conducting an investigation into JD's prescribing practices of prohibited drugs (see [19] of the decision). JD, became aware of this investigation when the Medical Board used information from this investigation in disciplinary proceedings the Board had initiated against him. In his internal review request JD had not specifically assert a breach of s.16 of the Privacy Act (i.e. use IPP) by the respondent agency in its conduct of the investigation. However, the tribunal found that JD's internal review request had sufficiently identified conduct that fell within s.16. That is, JD had identified "relevant conduct" for the purposes of review under the Privacy Act.. 28 In my opinion the internal review request by the applicant in this application differs substantially to those of GL and JD. While there are numerous allegations about the "conduct" of Inspector O'Reilly none of these can be said to be allegations about "relevant conduct" for the purposes of the Privacy Act. The applicant's allegations essentially relate to four matters: a) Inspector O'Reilly's refusal to act on her complaint about her neighbour; b) Inspector O'Reilly's failure to have regard to her disabilities in refusing to act on her complaint, c) Inspector O'Reilly's threats of prosecution action if the applicant made false allegations, and d) Inspector O'Reilly's direction that the applicant's communication (by telephone and facsimile) with her local command be restricted. It would appear that the applicant has misinterpreted the latter restrictions to include a threat that Inspector O'Reilly would have Telstra cancel her communication generally. This is clearly incorrect. All Inspector O'Reilly was seeking to do was to ensure that his local command could serve every member of the public within that command and not be unnecessarily distracted by the volume of material submitted by the applicant. 29 While the applicant has couched the abovementioned concerns as being a violation of her privacy, when they are examined they do not concern conduct by Inspector O'Reilly in relation to the collection of personal information concerning the applicant, or the storing, use or disclosure of personal information held by the respondent agency about the applicant. At most they concern the privacy of the applicant as a person, or the privacy of her personal behaviour and communications. These are not matters that fall within the jurisdiction of the tribunal. 30 As the applicant has failed to identify in her request for internal review any "conduct" by Inspector O'Reilly or any other officer of the respondent that falls within s.52(1) of the Privacy Act, her request was not a valid request under s.53 of the Privacy Act. On this basis the tribunal has no jurisdiction to hear and determine her application for review. Accordingly, her application should be dismissed. 31 The tribunal orders: 1. The tribunal has no jurisdiction to hear and determine the applicant's application. 2. The applicant's application is dismissed.

NZ v Commissioner of Police, NSW Police

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