BVU v Commissioner of Police, NSW Police Force [2016] NSWCATAD 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BVU v Commissioner of Police, NSW Police Force [2016] NSWCATAD 75 Hearing dates: On the papers Date of orders: 20 April 2016 Decision date: 20 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The application is dismissed. Catchwords: Privacy and Personal Information Protection - jurisdiction Legislation Cited: Privacy and Personal Information Protection Act 1998 Cases Cited: ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249 AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91 Category: Principal judgment Parties: BVU (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: BVU (Applicant in person) MinterEllison (Respondent) File Number(s): 1510214

Reasons for decision

Background 1. In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as BVU. 2. BVU applied to the Respondent pursuant to the provisions of section 53 of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") seeking amendments to an event record kept on the Respondent's Computerised Operational Policing System ("COPS"). The event record ("the COPS event") was created following an incident which occurred in July 2014. It records interactions between police and BVU and BVU's spouse and includes personal information about those persons. 3. BVU subsequently confirmed that he sought an amendment to the COPS event under section 15 of the PPIP Act rather than an internal review under section 53 of that Act. 4. Section 15 of the PPIP Act enables a person to make an application to amend personal information held about them by an agency in certain circumstances; namely in the event the information is not accurate, not relevant, not up to date, not complete or is misleading. 5. Sections 15 of the PPIPA provide: 15 Alteration of personal information (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. ... 1. The PPIP Act contains Information Protection Principles ("IPPs") which provide safeguards and privacy standards for the collection, storage, access, use and disclosure of health and personal information held about individuals by NSW government agencies. However, in response to BVU's request the Respondent noted that section 27 of the PPIP Act provides the Respondent with an exemption from the operation of the IPPs except when it is exercising its administrative or educative functions. It also noted that this exemption applies to the "amendment principle" outlined in section 15 the PPIP Act. 2. Section 27 the PPIP Act provides: (1) Despite any other provision of this Act, ... the NSW Police Force ... are not required to comply with the information protection principles. (2) However, the information protection principles do apply to the ... NSW Police Force .... in connection with the exercise of their administrative and educative functions. 1. The reviewer advised BVU: Following a discussion with the informant regarding the circumstances surrounding your application, I am satisfied that the information currently stored by the NSW Police Force COPS database in relation to this event is accurate, relevant, and not misleading as it provides a historical version of what took place at the time the record was created. The COPS event(s) in question represents a contemporaneous narrative / record of law enforcement activities of the NSW Police Force. The COPS event does not purport to establish the truth of the entry; rather it simply records work done by NSW Police as part of its core functions. The material contained within the COPS event represents information collected for a lawful purpose. The information stored by the COPS database provides a historical version / contemporaneous recording of events of what took place at the time the record was created. In having the relevant COPS entries amended or removed it is considered that an applicant would in effect be seeking to "rewrite" or change history which NSWPF contends falls outside the ambit of the PPIP Act. 1. BVU's application was refused on the basis that the Information that he was seeking to have amended concerned the Respondent's law enforcement activity and that the retention of the information is considered to be integral to that law enforcement activity. The reviewer determined that the Respondent is exempted from considering the application because of the exemption provided under section 27 the PPIP Act. 2. The reviewer also concluded that the information is accurate, relevant, and not misleading, as it provides a historical version of what took place at the time the record was created. 3. BVU applied to the Tribunal for external review of the Respondent's determination. If that determination is correct then the Tribunal has no jurisdiction because the PPIP Act does not apply.