Set aside by Appeal : Set Aside by Appeal on 3/06/2004 CITATION: KO & Anor v Commissioner of Police, NSW Police [2004] NSWADT 3 revised - 20/04/2004 DIVISION: General Division FIRST APPLICANT KO PARTIES: SECOND APPLICANT KP RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 033108,033109 HEARING DATES: 1/08/2003 SUBMISSIONS CLOSED: 08/29/2003 DATE OF DECISION: 01/12/2004 BEFORE: Robinson MA - Judicial Member APPLICATION: Privacy - information protection principle - disclosure to third party MATTER FOR DECISION: Principal matter Freedom of Information Act 1989 LEGISLATION CITED : Police Act 1990 Privacy & Personal Information Protection Act 1998 CASES CITED: Commissioner of Police NSW v "N" [2003] NSWSC 943 FIRST APPLICANT KP, agent SECOND APPLICANT REPRESENTATION: In person RESPONDENT C Capper, advocate PRIVACY COMMISSIONER J Gaudin, solicitor ORDERS: The applicants' applications are dismissed 1 This is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (NSW) (" the Act or the Privacy Act ") for a review of the conduct of NSW Police, a public sector agency in relation to its dealing with the alleged personal information of the applicants. It is alleged by the applicants that the respondent contravened a number of information protection principles (sections 8, 9, 10 and 11(collection issues), 16 & 17 (use), 18 (disclosure) of the Privacy Act) and compensation is sought along with other orders pursuant to section 55(2) of the Act. The respondent's case is that exemptions from compliance applied under the Act. 2 The applicants are a father and his son. The essence of the complaint is that in about August 2002, while investigating a complaint against the police handling of KO's arrest (the son), an unlawful disclosure of his personal information was made to his employer and, as a consequence, he lost his job and he seeks compensation and other orders under the Act. As a result of the applicant son being unemployed, the applicant father was required to support him. A request for an internal review was made by the applicants to the respondent and an internal review report was made dated 1 May 2003. 3 Apart from the matter I will turn to later, dealing with standing, I am satisfied that the Tribunal has jurisdiction to hear the two matters, which are closely related and were heard together. The applicant father represented himself at the Tribunal hearing and he also appeared for the applicant son. 4 Documentary evidence before the Tribunal comprised a written authority to act from the applicant son to the applicant father (exhibit 1); a statement from the applicant son to the respondent dated 30 May 2002 (exhibit 2); a statement from Constable Bradley McClifty (who arrested the applicant son) to the respondent dated 31 May 2002 (exhibit 3); the internal review decision dated 1 May 2003 (which enclosed a statement from the applicant father to the police dated 18 August 2002 and a statement from Mr Andrew James Nichols, the managing director of the former employer of the applicant son, dated 21 August 2002 (exhibit 4). Also in evidence before the Tribunal is an affidavit from the applicant father sworn 18 Jun 2003 which has a number of documents annexed to it. One of those documents is a single page from the diary of Detective Inspector Oswald who investigated the police misconduct claims made by the applicant son. During the hearing, the second page of that diary entry was also tendered. 5 Written submissions were filed by the Privacy Commissioner on 19 August 2003 and by the applicants on 19 June 2003 and 29 August 2003. 6 The applicant father gave oral evidence and was cross-examined by the respondent's representative. He said that for a period of about 12 months, from August 2002 to August 2003 he was required to financially support his son as a result, he said, of the respondent's investigation. In that time, his son could not pay the usual bond of $60 per week. 7 The primary facts in these proceedings are not in significant contest. The evidence establishes that on 30 May 2002 the applicant son was arrested for smoking on a railway platform in Sydney and for refusing to provide the police with his name. He was arrested, he said, while on his way to work about midday that day. He was placed inside a police van and driven to the police station, subjected to the usual formal procedures and he made a formal complaint about the circumstances of his arrest and treatment by the police. He had managed to telephone his father who arrived at the police station and assisted him in making his formal complaint about the alleged police misconduct. Certain statements were written or taken over the next few months in relation to the formal complaint. Eventually, on 18 August 2002 Detective Inspector Oswald interviewed the applicant father and took a lengthy statement. In that statement the applicant father set out in very great detail the events of 30 May 2002. At one point in the interview, the applicant father said that he intended to seek compensation for loss of wages and for expenses for the day. Also at the interview, he stated that he drove his son to work after the arrest incident and all the workers have gone home as it was 3.50 pm. He said that his son was employed by a building company working at the Hawkesbury University site as a "supervising electrical mechanic" where he was the on-site supervisor, supervising the daily activities of about 6 to 10 employees and that he is employed on a full-time basis. 8 In the statement by the applicant son to the respondent resulting from the complaint, he said to his arresting officers at one point while in the police station on 30 May 2002 that he needed his mobile phone in his cell as he was the supervisor of a $7 million contract and he must keep in contact with people on-site. 9 As a result of this information, the Detective Inspector then went to the applicant son's employer and spoke to Mr Andrew Nichols about the applicant son. Precisely why this was necessary is not clear to me. Evidence was not given from Inspector Oswald and Mr Nichols was not called to give evidence or be cross-examined. The internal review document asserts that the reason for the visit to the employer was to confirm the details concerning the applicant's whereabouts and his employment status on the day of his arrest. The former issue I would consider to be wholly irrelevant to any investigation of a complaint. However, investigation of the employment status of the applicant son on a day of his arrest would plainly be relevant in the circumstances of the police misconduct complaint. 10 The respondent's legal representative at the hearing also submitted that the applicants' complaints could have led to a civil or criminal suit for unlawful imprisonment and to a claim for damages and these issues should have been investigated. Further, it was submitted that the "veracity" of the applicants' statements should have been checked by the investigators. 11 Whatever the reason for it occurring, and whatever was said between the Inspector and the employer on 21 August 2002 when that interview occurred, I consider it was lawful and not inappropriate in the circumstances for the police to at least attend and make some inquiries of the employer in the course of their investigation especially given the statements of the applicants noted above. 12 The employer stated that he was the managing director of the building company which was undertaking refurbishment work at the Hawkesbury campus of the University of Western Sydney on 30 May 2002. He said as at that day, the applicant son was a casual employee who was a trades assistant and he did not supervise anyone at work. He said that he is responsible for maintaining his own timesheets which are not countersigned by anyone. As a result of his conversation with the Inspector, he contacted the building company pay office and ascertained that the applicant son claimed working hours for that day from 8 am to 4 pm (in circumstances where other evidence indicates that he did not arrive at work until 3.50 pm). Other evidence establishes that soon after this interview, the applicant son was dismissed from his employment. 13 The release of information about the applicant son from the Inspector to the employer is the primary personal information disclosure that is complained of in both cases here. It can be inferred that the information given to the employer must have been that relating to the whereabouts of the applicant son presumably from the time he was arrested at the railway station which was about midday. However, it might have been restricted solely to a query which caused the employer to make his own inquiries. The evidence does not permit me to make findings as to what was said between these two men or as to why or in what circumstances the applicant son was terminated from his employment. 14 The respondent's answer to the whole of the applicants' case is that, firstly, the applicant father has no standing as he is not a person "who is aggrieved" by the conduct of the police misconduct investigation within the meaning of section 52(1) of the Privacy Act. Secondly, it is said that even if the question of identifying the whereabouts of a particular individual can constitute personal information, any alleged personal information about an individual that arises out of a complaint made under Part 8A of the Police Act 1990 does not constitute personal information for the purposes of the Privacy Act as a result of section 4(3) of that Act and the exclusion of police misconduct investigations. Thirdly, and alternatively, it is said that section 27 of the Privacy Act applies which provides that the information protection principles do not apply to the respondent except when it is exercising its "administrative and educative functions". It is said that when the respondent is conducting a police misconduct investigation pursuant to Part 8A of the Police Act 1990, it is conducting a formal law enforcement or investigative function. Part 8A of the Police Act 1990 15 By the operation of section 4(3)(h) of the Privacy Act, "personal information" within the meaning of the definition in section 4 of that Act does not include any information about an individual arising out of a complaint made under Part 8A of the Police Act 1990. 16 This is a very wide exemption from the Act in favour of the respondent. When it applies, it removes the information concerned from the operation of the entire Act. It was plainly intended by the New South Wales Parliament to accord great flexibility to the NSW police when dealing with what is known as "Part 8A investigations". The Privacy Commissioner submitted that the correct meaning of section 4(3)(h) of the Act was the exemption related to information that was created or revealed as a result of a lawful investigative process. It was said that it did not apply to information that was linked in some indeterminate way with the investigation. I agree. Information that bears a tenuous relationship to an investigation is unlikely to fall within the exemption. In the present case, I consider that the personal information concerning the applicant son and his relationship with the police and his employer on the relevant day was all plainly information arising out of the police misconduct complaint made by the applicant and his father on 30 May 2003. I see no reason why the Part 8A investigation and exemption cannot cover information revealed by an officer conducting an investigation and communicated in the course of the investigation. 17 At the hearing, the respondent's representative spoke to the Tribunal in some detail as to the scheme of Part 8A of the Police Act 1990. His purpose was to demonstrate that the Part contains its own external review procedure, as it were, of the Commissioner of Police by the supervision and intervention and the New South Wales Ombudsman in dealing with complaints about the conduct of police offices in New South Wales. I accept these submissions. The scheme of the Part 8A exemption is plainly to free up the respondent to conduct police misconduct inquires under the scheme of the Police Act and to do so without any of the strictures of the Privacy Act applying. 18 As to the standing argument and the alternative section 27 of the Privacy Act argument, I do not need to decide these given the finding on section 4(3)(h) of the Act. If I was required to render a finding on the standing issue, I would have been inclined to accord the applicant father standing as the uncontested evidence was that he was specifically and adversely financially affected by the alleged breach of the Act. He was also personally involved in the subject events from the very first day and he was the subject of some adverse comments from Inspector Oswald (set out in the father's affidavit). He was plainly aggrieved by the conduct of the internal review within the meaning of section 53(1) of the Act. 19 As to section 27 of the Act, were I to determine the argument, I would have likely held that the police misconduct investigation undertaken pursuant to Part 8A of the Police Act 1990 was properly characterised as an exercise of the respondent's law enforcement or investigative functions under the Police Act 1990. The words "administrative functions" in the Police Act are in an entirely different legislative setting to that in section 39 of the Freedom of Information Act 1989. In Commissioner of Police NSW v "N" [2003] NSWSC 943, Justice Cripps considered the expression an agency's "administrative functions" was very wide for the purposes of the FOI Act. It was found that it included police operational matters. However, I doubt the reasoning there would apply in the context of the Privacy Act. Determination The applicants' applications are dismissed. Decision revised 28/4/04 to anonymise applicant's names. 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.