GA v Commissioner of Police, NSW Police [2005] NSWADT 123

CITATION: GA v Commissioner of Police, NSW Police [2005] NSWADT 123 DIVISION: General Division APPLICANT PARTIES: GA RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 043395 HEARING DATES: 8/03/2005 SUBMISSIONS CLOSED: 03/18/2005 DATE OF DECISION: 06/07/2005

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Privacy - information protection principle - collection - unlawful MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Criminal Procedure Act 1986 Privacy & Personal Information Protection Act 1998 Brooks Maher -v- Cheung [2001] NSWADT 18 CASES CITED: GA v Commissioner of Police, NSW Police [2005] NSWADT 121 Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 APPLICANT REPRESENTATION: In person RESPONDENT P Mclaughlin, solicitor ORDERS: Decision affirmed. No order as to costs

REASONS FOR DECISION Introduction 1 GA and his wife have been involved in a domestic dispute. In May 2004 they separated but continued living in the same house, which was in joint names. According to GA's wife, GA left the home and did not return for a couple of weeks. Apparently believing that he had left for good, she changed the locks on the house to keep GA out. GA went to the police station on 11 June. Police say that they told GA at that time that if he went to the house and damaged property to get in, that would amount to malicious damage, which is an offence. GA denies that that is what the police told him. The next day GA was arrested and charged with malicious damage to property including a garage roller door locking mechanism at the home where GA and his estranged wife had been living. 2 There were no eye-witnesses to the damage and the evidence relied on by police was all circumstantial. On 4 August 2004, GA's wife gave the investigating officer, Sergeant Mills, a copy of a credit card statement in GA's name which recorded that on 21 May 2004, GA had made a purchase from B & D Australia. The reason GA's wife gave the credit card statement to police was apparently because she considered that GA's purchase from B & D was a new roller door and the fact that he made such a purchase suggested that he had planned to damage the garage doors. Sergeant Mills took the credit card statement and recorded it in an exhibit book. He formed the view that the statement was relevant to the investigation and included it in the prosecution's brief of evidence which was subsequently served on GA. 3 When GA saw the credit card statement he requested NSW Police to carry out an internal review of their conduct in collecting the credit card statement. NSW Police conducted an internal review and decided not to take any action. GA then applied to the Tribunal for a review of the conduct of NSW Police under the Privacy and Personal Information Protection Act 1998 (PPIP Act). NSW Police applied for the matter to be dismissed under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (ADT Act) saying it was frivolous, vexatious and lacking in substance. It is not apparent on the face of GA's complaint that it is necessarily frivolous, vexatious, misconceived or lacking in substance. The merits of his application cannot be assessed until the conduct is identified and the provisions of the PPIP Act applied to that conduct. 4 The alternative submission from NSW Police was that the conduct is exempt under s 27 of the PPIP Act and it does not come within exception in s 27(2). Section 27 of the PPIP Act provides a specific exemption for NSW Police and other related agencies, from the Information Protection Principles except "in connection with the exercise of their administrative and educative functions". That sections states that: (1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Police Service, 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 Police Service, 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. (Emphasis added.) Issue 5 The first issue for the Tribunal to determine is whether NSW Police were exercising their "administrative or educative" functions when they collected the personal information in the bank statement. If so, the second issue is whether NSW Police has breached any of the information protection principles in relation to the collection of information. Evidence 6 Sergeant Mills gave evidence saying that he was the investigating police officer in relation to the malicious damage offence. He said that GA had pleaded not guilty to the charge and that it was listed for hearing in mid May 2005. Sgt Mills said he prepared the brief of evidence at the direction of the police prosecutors as required by s 183 of the Criminal Procedure Act 1986. 7 Sergeant Mills agreed that the only information on the credit card statement that was relevant to whether or not GA was guilty of the offence of malicious damage, was the entry relating to the purchase from B & D Australia. Other information on the statement such as GA's credit limit and other purchasers recorded are not relevant. Meaning of "administrative . . . functions" 8 My understanding of the meaning of "administrative . . . functions" is set out in detail in the decision of GA v Commissioner of Police, NSW Police [2005] NSWADT 121 which involved the same parties and similar submissions to these proceedings. I adopt the reasoning in that decision in this case. In summary, administrative functions are not the core functions carried out by police when engaging in the prevention, detection or prosecution of criminal activities. I am satisfied that the blanket exemption in s 27(1), applies to the collection of information which is, or may be, relevant to the prevention, detection or prosecution of crime. The fact that not all the information in the credit card statement was relevant for that purpose does not matter. The question is whether the conduct concerned, that is the collection of the information, was in connection with the exercise of NSW Police's administrative and educative functions. Clearly it was not. 9 Having reached that view, it is not strictly necessary to consider the second issue. However I note that GA was concerned only with the IPPs associated with the collection of personal information. Section 4 (5) of the PPIP Act provides that that personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited. Since GA's wife brought the credit card statement to the police station on her own initiative, NSW Police did not solicit that information and it has not been "collected". I also note that s 23(1) and (2) protects NSW Police from compliance with s 9 of the PPIP Act in the circumstances of this case and that s 23(3) protects it from compliance with s 10. Costs NSW Police applied for costs. However I have not dismissed GA's application under s 73(5)(h) of the ADT Act as frivolous, vexatious or lacking in substance. There are no other "special" circumstances such as delay warranting an award of costs. (See s 88 of the ADT Act and Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25) and Brooks Maher -v- Cheung [2001] NSWADT 18 at [14].) Orders Decision affirmed. No order as to costs