AEC v NSW Police Force [2013] NSWADT 32

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AEC v NSW Police Force [2013] NSWADT 32 Hearing dates: Hearing on the papers Decision date: 07 February 2013 Jurisdiction: General Division Before: Judicial Member Naida Isenberg Decision: The decisions under review areaffirmed Catchwords: Privacy - disclosure of spent conviction - expunged record - disclosure to employer and another - administrative or educative function exemption Privacy - deletion of record Legislation Cited: Privacy and Personal Information Protection Act 1998 Public Sector Employment and Management Act 2002 State Records Act 1998 Cases Cited: AFW v Workcover Authority of NSW [2012] NSWADT 136 Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 HW v Commissioner of Police, New South Wales Police Service and anor [2003] NSWADT 214 The Ombudsman v Laughton[2005] NSWCA 339 ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249 Category: Principal judgment Parties: AEC (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: AEC (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 113170, 123111

Judgment Background 1.The applicant has sought review of the respondent's conduct in 2 matters, alleging breaches of the Privacy and Personal Information Protection Act 1998 ('PPIP Act'). Matter 113170: the disclosure complaints 2.The applicant complained of disclosures alleged to have been made by the respondent as follows: 'Release of private information to my x-partner, [Ms X], as supported by her own affidavit dated 10 June 2010 ('the first disclosure') Also police releasing information to my employer regarding same incident ('the second disclosure')' 3.The first disclosure was described by Ms X in an affidavit to the effect that during Local Court proceedings in whichshe sought an AVO and the applicantwas charged with assault, the police told her that the applicant had a criminal record, of which she had beenpreviously unaware.The applicant in fact had a 'spent conviction' from the 1980s. 4.As to the second disclosure, the respondent confirmed that it had disclosed to the applicant's employer,NSW Corrective Services ('the employer') that the applicant was the subject of court proceedings for common assault involving Ms X. That charge had been dismissed. 5.The respondent considered that there was no breach of s. 18PPIP Act because of the following: The s. 41 PPIP Act 'Direction on Processing of Personal Information by PublicSector Agencies is in relation to their Investigative Functions' ('the Investigative Functions Direction'); Section 25, PPIP Act read with clause 27 of the Public Sector Employmentand Management Regulation 2009 ('the PSEM Regulation'), which requires an employee to disclose the fact that he or she has been charged with a serious offence, that is, an offence punishable by imprisonment for 12 months or more (s. 48, Public Sector Employment and Management Act 2002 (PSEM Act')) Part 5 of the Private Code of Practice (General) 2003 ("the Privacy Code')allows the employer to disregard the collection when receiving information from the respondent regarding the employer's employees. 6.Following observations by the Office of the Privacy Commissioner ('OPC') the Respondent conducted an internal review. Matter 123111: the amendment of records complaint 7.By letter dated 28 February 2012, the applicant applied under s. 15PPIP Act to have his criminal record amended, namely his conviction for stealing in 1984, by deleting it. By decision dated 3 May 2012, the respondent refused the applicant's request because: The recording in the Computerised Operational Policing System ('COPS') of the applicant's personal information was initially a collection for a policing purpose and therefore a law enforcement function (GA v Commissioner of Police, NSW Police Force [2005] NSWADT 121) and, accordingly, not subject to the information protection principles by virtue of s. 27PPIP Act In any event, it is important for the NSWPF to retain criminal records toensure that there is a historical account of events relating to charges in subsequent court proceedings, including any convictions Even if NSWPF were required to follow IPP8 in [the applicant's] case, there wasno reason to believe that his criminal record is not accurate, up to date, relevant, complete or misleading. 8.By internal review dated 23 May 2012, the respondent refused to amend the information for the reasons previously provided in its decision of 3 May 2012. In addition, the respondent noted that the State Records Act 1998prohibits a person from altering a State record except in limited circumstances, none of which was applicable to the applicant. LEGISLATIVE SCHEME 9.The PPIP Act contains Information Protection Principles (IPPs) which provide safeguards and privacy standards for, amongst other things, the disclosure of personal information of individuals held by public sector agencies, including the respondent. 10.However, pursuant to s. 27(1) of the PIPP Act the respondent is not required to comply with the Information Protection Principles ('IPPs') other than in connection with the exercise of its administrative and educative functions: s.27(2) PIPP Act. The expunged record 11.In order to contextualize the applicant's complaints the Tribunal asked the respondent to explain how the expunged record remained accessible to its officers other than the Criminal Records Section. The respondent wrote to the applicant on 18 June 2012 and a copy was provided to the Tribunal. In summary, the respondent agreed that in 2003 - which was pre-COPS - the applicant had made representations to have his criminal record expunged. In order to expunge the record, it had to be 'backcaptured' onto COPS to reflect that it was 'expunged'. This process was required in order to update and track changes made to criminal records on COPS, otherwise, there would be no audit trail on COPS to reflect changes; the matter was expunged in accordance with the policies at that time.Approval was given for the applicant's criminal record to be expunged and the associated fingerprints taken in connection with his arrest in 1983 for 'stealing' were destroyed. A letter to this effect was sent to the applicanton 17 March 2003. 12.In February 2010, when the applicant was arrested for assault, a name and date of birth check was undertaken on COPS to establish whether he was previously known to police. It appears that a member of the respondent identified that the applicant was previously known and that his previous criminal record was not held on COPS but existed on a microfilmed record. In accordance with internal processes, his criminal record was backcaptured and placed back on to COPS. 13.At that stage, the respondent conceded, an administrative error occurredin that the officer did not print a full criminal history prior to sending the record for backcapture. Had a full criminal record been printed, the full criminal record would have shown the matter had in fact been expunged.The only time an expunged matter will show on a person's criminal record in COPS, is when a full history is printed. 14.To avoid a similar occurrence in the future, a review of current processes has been undertaken and a change to this process was said to now have been implemented. 15.A warning has also been placed on the applicant's COPS record which, the respondentanticipates, should prevent the applicant from being further inconvenienced. 16.Since November, 2005the respondentno longer expunges information relating to NSW charges to ensure compliance with Part 3 the State Records Act 1998. 17.Copies of documents were providedto illustrate how the applicant's offence had been "expunged" and the accessing process was explained. 18.I was informed that the applicant was assured that should a police officer directly access his criminal history again, there is no reference to the expunged offence. A "Full History" which shows the 1983 conviction as being expunged, is accessible only by the Criminal Records Section and is retained for audit purposes only. CONSIDERATION The Disclosure Complaints Adequacy of evidence 19.The OPC was critical of the material filed by the respondentand submitted that it was not sufficient to support the respondent's submissions, which if accepted, would defeat the applicant's privacy complaint. I was referred to the recent decision of AFW v Workcover Authority of NSW [2012] NSWADT 136 , where, at [48] the Tribunal said: "48 I agree that where facts are wholly within an agency's peculiar knowledge it is for the agency to provide evidence to the Tribunal to support its position and to prove its case them (sic) to the reasonable satisfaction of the Tribunal. The evidence required to achieve this will vary from case to case. I (sic) some matters, as is the situation here, the documents themselves may be sufficient evidence." 20.The applicant had filed a number of documents outlining the history of his complaint. That history did not appear, ultimately, to be disputed. 21.Despite its view to the contrary in its internal review, there also did not ultimately appear to be any dispute that the respondent had disclosed to Ms X, by one means or another, an old record which had been expunged in 2003 ('the expunged record'), nor that the respondent had disclosed the expunged record and the applicant's 2010 assault charge to the employer. The applicant contended though that the respondenthad, by an officer accessing COPS, inappropriately disclosed the expunged record to Ms X, when only the respondent's records department should have had access to that record. In the course of these proceedings the respondentdid not at first accept that the record had been expunged. 22.The applicant conceded that the employer needed knowledge of his common assault charge, but not the expunged record. 23.While it may have been of some interest to have more information about the circumstances of the disclosure in each case, there did not appear to me to be any real dispute about what had occurred. I therefore reject the OPC's submission that the Tribunal is not in a position to make a decision on the availableevidence. Section 27 of the PPIP Act 24.The respondent submitted that it is excused from compliance with the IPPs in relation to both disclosures by reason of s. 27PPIP Act. It also relied, in the alternative, on the Privacy Code in relation to the second disclosure. 25.The IPPs only apply to the respondent where its conduct is in connection with "administrative" or "educative" functions.The respondent referred to Commissioner of Police, New South Wales Police Force v YK [2008] NSWADTAP 78 ('YK'), where the Appeal Panel emphasised that "the starting point is that all functions of the Police Force have (sic) the benefit of the s 27(1) exclusion": at [20]. 26.The OPC contended, in effect, that this interpretation was too narrow and made extensive submissions about the respondent's investigative functions. Administrative functions 27.The Macquarie Dictionarydefines "administrative" as "relating to administration", which in turn means "the management or direction of any office or employment". I accept that usually, an office's management or direction will be an internal matter, but I otherwise do not find the dictionary definition to be of much assistance. 28.In YK, the Appeal Panel narrowlyinterpreted the term "administrative functions"in s.27(2). There the Appeal Panelprovided the example of "corporate services areas performing functions such as personnel, budget and information technology involve the performance of 'administrative' functions": at [20]. The disclosures in this matter are not of this kind. 29.The Appeal Panel approvedparagraph [30] ofHWv Commissioner of Police, New South Wales Police Service and anor [2003] NSWADT 214('HW')wherethe Tribunal considered an activitymay be characterised as administrative, depending on its context: "The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime [and is not considered an administrative function], while in other instances they are done administratively, for example for background checks on prospective employees." 30.The Tribunal in HW had placed some weight on the 'core'/'non-core' reasoning since rejected by the Appeal Panel in YK. The Appeal Panel noted that, in The Ombudsman v Laughton[2005] NSWCA 339, Spigelman CJ had held that "matters of internal administration, such as employment of staff' fell outside the scope of the relevant section illustrate that where dealings with criminal records are for internal matters, they are more readily characterised as administrative. Where the dealings with the criminal records could not be said to be for an internal matter, they are less likely to be characterised as administrative. It seems to me that the dealings with the applicant's criminal records in this matter could not be characterised as administrative. 31.I have come to this view notwithstanding the broad meaning often given to the words "in connection with", and find the disclosures were not "in connection with" the exercise of the respondent'sadministrative functions. 32.Accordingly, I find the disclosures were not, on their ordinary meaning, in the exercise of the "administrative" functions of the respondent. Educative functions 33.The ordinary meaning of "to educate" is: "1.. to develop the faculties and powers of by teaching, instruction, or schooling; qualify by instruction or training for a particular calling, practice, etc.; train. 2. to provide education for; send to school. 3. to develop or train (the ear, taste, etc.): to educate one's palate." 34.While this is not an exhaustive list the above definition suggests that something more than mere provision of information is required to be "educative". 35.In HWat [31], the Tribunal considered that: "the work that the Police Service does in connection with community and school education programs, as well as in relation to its internal education and training programs" constituted educative functions of the respondent." 36.The Tribunal in HW rejected the applicant's submission that disclosure by the respondent of a report containing personal information to another party could be said to "educate" those persons about the matters in the report. I agree that otherwise this would be a "forced" use of the term "educate": HW at [32]. 37.The respondent, in informing Ms X that he had a criminal record and informing the employer that he had been charged with assault, could not be said have to been exercising an "educative" function nor could the disclosures be in connection with the exercise of such educative functions. 38.According to its ordinary meaning, both disclosures fall outside the description of "educative" functions. 39.For these reasons, I find that in respect of both disclosures the respondent was exempt from compliance with s. 18. 40.Having come to that view it was unnecessary for me to consider the respondent's alternativesubmissions in relation to the Privacy Code. The Amendment of Records Complaint 41.The applicant's record was expunged by the respondent in 2003. The record, the applicant submitted, has no historical value and is well out of date, being nearly 25years old. He asks for it to be destroyed. 42.One of the IPPs contained in the PPIP Act relates to the alteration of personal information (IPP 8). IPP 8 states: 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. 43.The respondent submitted that, s.27 PPIP Act again applies. 44.The respondent referred me toACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249 in which the Tribunal considered an application for the deletion of photographs of the applicant taken when she was being charged with a number of offences. The Tribunal there dismissed the application on the basis that it had no jurisdiction to review the conduct in issue (at [11]) because the taking of photos was not an administrative or educative function (at [27]). 45.The applicant contended that State Records Act allows records to be destroyed and referred me to Guideline 3 - Destruction of Records State Records Act. 46.The respondent submitted that no issue arises as to the application of the State Records Act 1998where the relevant conduct, as in this case, is not 'in connection with the exercise of [the respondent's] administrative and educative functions'.The respondent referred to its obligations under the State Records Act 1998, which prohibits a person from altering a State record except in limited circumstances. Criminal records held by the respondent in COPS fall within the definition of a State record. None of the limited circumstances provided for in the State Records Act 1998 exist in this case. Accordingly, the Tribunal finds the criminal record in COPS cannot be altered. Decision 47.The decisions under review are 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. Decision last updated: 07 February 2013