ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249 Hearing dates: On the papers Decision date: 02 November 2011 Before: P Molony, Judicial Member Decision: The application is dismissed. Catchwords: Privacy and Personal Information Protection - personal information - deletion - retention - administrative or educative function Legislation Cited: Crimes Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002 Privacy and Personal Information Protection Act 1998 Cases Cited: Commissioner of Police, New South Wales v YK (GD) [2008] NSWADTAP 78 GA v Commissioner of Police, NSW Police [2005] NSWADT 121 HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 McPhail v R (1988) 36 A Crim R 390 R v SA, DD and ES [2011] NSWCCA 60 WL v Randwick City Council [2007] NSWADTAP 58 Category: Principal judgment Parties: ACP (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Redfern Legal Centre (Applicant) Norton Rose Australia (Respondent) Privacy Commissioner File Number(s): 113116

REasons for decision

Introduction 1On 24 February 2011 ACP's solicitor wrote to the Commissioner of Police requesting that a photograph of ACP, taken by Police on 13 December 2006, when she was charged with a number of offences, be destroyed. Those charges had been dismissed in the Local Court on 29 October 2007. The request for the destruction or deletion of ACP's photographs from Police records was made under s 15 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act). 2Section 15 of the PPIP Act provides: (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. (4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998 . (5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with. (6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff. 3Personal information is defined in the PPIPA. Section 4 relevantly provides: (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database 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. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) ... 4The definition of personal information in s 4(1) is a wide one. It is not confined to information about an individual's personal affairs, but is a 'broad, unrestricted' definition: WL v Randwick City Council [2007] NSWADTAP 58 at [20]. Due to the beneficial nature of the PPIPA, exclusions from the definition are to be construed narrowly, while the definition itself is to be construed widely and beneficially: WL v Randwick City Council at [22]. In this case there is no dispute that the photographs of ACP held by the Commissioner contain her personal information within the meaning of the definition of personal information in s 4 of the Act: 5By a letter dated 16 March 2011 from the Criminal Records Section the Commissioner advised that, "section 137 of the Law Enforcement (powers and Responsibilities) Act 2002 does not permit the destruction of charge photographs." 6On 16 May 2011 ACP applied to the Tribunal to review the conduct of the Commissioner in refusing to delete and retaining her charge photograph under the PPIP Act. 7At a planning meeting held on 7 June 2011 the parties agreed to: * Provide the Tribunal with a statement of agreed facts. * Make submissions outlining their respective positions and contentions based on those agreed facts. * The Tribunal then determining the issues on the papers.