CITATION: OQ v Commissioner of Police [2005] NSWADT 240 DIVISION: General Division APPLICANT PARTIES: OQ RESPONDENT Commissioner of Police FILE NUMBER: 053041 HEARING DATES: 02/06/2005 SUBMISSIONS CLOSED: 06/02/2005 DATE OF DECISION: 10/21/2005 BEFORE: Montgomery S - Judicial Member APPLICATION: Privacy - information protection principle - disclosure to third party - Privacy - information protection principle - personal information - use MATTER FOR DECISION: Principal matter LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 CASES CITED: GA v Commissioner of Police, NSW Police [2005] NSWADT 121 APPLICANT REPRESENTATION: In person RESPONDENT J McDonnell, solicitor ORDERS: The decision under review is affirmed. REASONS FOR DECISION 1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as OQ. 2 This an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Act") for a review of the conduct of the Police Service in relation to their dealing with alleged personal information of OQ. Background 3 In February 2004 OQ attended a Police Station to report the theft of his bicycle. He provided his address for the purposes of the report. The report of the bicycle theft was listed as an event on the Computerised Operational Policing System ("COPS") computer system. 4 In March 2004 an individual ("B") who had previously used OQ's details as an alias name was arrested and charged by Police. The arresting police made a COPS entry in relation to B's arrest and charge. The 'name enquiry' on the police computer showed that B had used OQ's name as an alias name in previous dealing with the police. The computer also identified other entries under OQ's name including the COPS Event relating to OQ's stolen bicycle. In the course of writing the COPS entry for the arrest of B, the arresting police inadvertently linked the Event relating to the bicycle theft, to the entry relating to B's arrest. As a result, OQ's home address was listed as B's address. 5 On 28 March 2004 OQ was at his home address. Police Officers attended this address looking for B. OQ informed the officers that no one by that name resided at the premises. 6 On advice from the police, OQ provided comparison fingerprints at the Police Station. These fingerprints were compared with fingerprints of person's who had used OQ's name in their dealings with the police. It was discovered that two separate persons, who had previously been arrested and charged with criminal offences, had given police OQ's name at the time of their arrest and charge. As a result a warning was placed on the Police computer system stating that OQ was not identical to either of the individuals who had used his name. 7 B's offence was subsequently dealt with at the Parramatta Drug Court on the 22 June 2004, where a $100 fine was imposed. As B did not pay the fine, the court referred the matter to the State Debt Recovery Office ("SDRO") for enforcement action. OQ's home address was provided to the SDRO. The SDRO then referred the matter to the Sheriff's Office for property seizure. 8 On 25 August 2004 officers from the Sheriff's Office attended OQ's home address looking for B. OQ informed the Sheriffs Officers that B did not reside at that address. 9 OQ has found himself in the position where he is required to explain his circumstances in the course of his employment and in order to distinguish himself from others who might have adopted his identity. This might for example require him to prove to police that he does not possess certain tattoos. 10 In December 2004 OQ wrote to the NSW Police Service ("the agency") in relation to his concerns about the management of his personal information by the Police and applied for an Internal Review under Section 53 of the Act. The essence of OQ's position is that that the agency has breached Information Protection Principles ("IPPs") contained in the Act. The agency interpreted this as an allegation that that the agency collected, retained, stored and used his personal information (namely, his address) contrary to the IPPs in sections 11, 12(c) and 17 of the Act. OQ asserts that the use of his personal information is his main concern. 11 OQ was not satisfied with the outcome of the internal review and has applied to the Tribunal for an external review of the agency's conduct. He has also sought compensation for the distress and inconvenience caused to him. 12 The agency submits that it is exempt from all the IPPs because of the operation of section 27 of the Act. That section provides: "27 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, Police Service, PIC, Inspector of PIC and Inspector's staff and NSW Crime Commission) (1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, NSW Police, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission are not required to comply with the information protection principles. (2) However, the information protection principles do apply to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, NSW Police, the Police Integrity Commission, the Inspector of the Police Integrity Commission, the staff of the Inspector of the Police Integrity Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions." 13 Accordingly, the main issue for determination in this matter is whether or not the conduct of which OQ has complained is conduct in connection with the exercise of the agency's administrative and educative functions. Meaning of "administrative and educative functions" 14 The application of section 27 of the Act was considered in detail by Deputy President in the matter of GA v Commissioner of Police, NSW Police [2005] NSWADT 121. The Deputy President considered evidence from Senior Constable Gordon Stacey in relation to the COPS system. Senior Constable Stacey has provided what appears to be similar evidence in this matter. 15 At paragraph 18 of her reasons, the stated: "18 I accept that the information recorded in the COPS system is used not only for the direct purpose of preventing and prosecuting crimes but also indirectly for that purpose, namely to ensure that police officers are following the appropriate procedures and are fully investigating matters. Supervisors assess the information in the COPS data base in a process known as "Quality Review". GA has not complained about any conduct involved in the Quality Review process or indeed in any other of the processes that are necessary in order to ensure that the operational system works effectively. Despite the evidence from Senior Constable Stacey that the COPS system has administrative aspects, I am not satisfied that those functions are necessarily administrative functions within the meaning of that term in s 27. They are indirectly associated with the core activity of the prevention and detection of crime. Even if some aspects of the COPS system involve administrative functions, that does not mean that the aspect of recording and using information for the purpose of preventing and detecting criminal activity is part of NSW Police's administrative or educative functions." 16 She then considered the application of section 27 of the Act to unlawful activities. She concluded at paragraphs 19 – 20: "Does s 27 only apply to lawful activities? 19 GA's alternative submission was that the restriction on the application of the IPPs in s 27 can only relate to lawful investigations and prosecutions. According to GA the investigation and prosecution in relation to him was not lawful because the information in the COPS data base is false and the prosecution of him was malicious. NSW Police submitted that an activity does not lose its character as a law enforcement activity even if the information is incorrect. 20 Section 27(1) gives a blanket exemption to NSW Police from the application of the Information Protection Principles. That exemption is not qualified in any way in relation to the lawfulness or otherwise of the activity concerned." Findings 17 I agree with the views expressed by the Deputy President in GA v Commissioner of Police, NSW Police. I adopt the reasoning in that decision in this case. In my view, the collection, retention, storage and use of information in COPS by police meets the description of "core responsibilities". This situation is not altered by the fact that information has been incorrectly recorded or wrongly used. It cannot be said that the conduct with which this application is concerned was in connection with the exercise of NSW Police's administrative and educative functions. Accordingly, I am satisfied that the exemption in s 27(1) of the Act applies to the circumstances of this matter. 18 In the circumstances, I need not consider that aspect of OQ's application in which he seeks for compensation for the distress and inconvenience caused to him. 19 I note that the agency has expressed sincere regret for the inconvenience that OQ has been caused through the linking of his address details to those of the arrested individual. I also note Senior Constable Stacey's evidence that the agency has taken action in order to prevent OQ's details being linked to those of individuals who have used his identity as an alias. In the circumstances, the decision under review should be affirmed and the agency should not be required to take any further action in relation to this matter. Orders The decision under review is affirmed. 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.