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. Does the PPIP Act apply? 1. Each of the parties has filed written submissions in support of its case. The Respondent relies on the evidence of Sergeant Herbert Hobbs, an officer of the Respondent, about the purpose and function of the COPS database. 2. Sergeant Hobbs explained that the Respondent utilises COPS for the recording of its 'operational policing data'. Sergeant Hobbs states that COPS can, among other things, be used to: (a) record information about an individual's level of risk (e.g. previous violent behaviour, firearm possession); (b) record details of activities reported to or witnessed by Police in relation to crime or suspected crime; and (c) collate data to ascertain any crime patterns. 1. Sergeant Hobbs explained that that a 'COPS event' is a record of an attendance by the Respondent at an incident. The COPS event that is the subject of this application is one such record. 2. In this regard, the COPS database is central to the Respondent's ability to carry out at least two of its core functions as defined in section 6 of the Police Act 1990, being the 'prevention and detection of crime' and the 'protection of persons from injury or death, and property from damage '. 3. The Respondent contends that it is clear from this evidence that the COPS event was made and is kept by the Respondent in connection with carrying out its core functions, and not in connection with its administrative or educative functions. 4. BVU conceded the benefits of collecting information by the Police, including the prevention of crime. He stated that his concern is that there is no way of verifying the correctness or otherwise of the collected information by testing against alternative, independent sources, including the person about whom the information is collected. The Police Force cannot guarantee that this information may not be used by force of suspicion against an innocent person, especially if containing expressions of opinion by the Officer. 5. He says that the assertion that the 'conduct' in this matter is not 'administrative or educational' is self serving and arbitrary. He further stated that while keeping of the COPS database is 'primarily an operational matter', there is a case to be made that the information is to be used for 'administrative' functions and hence subject to review. 6. He submitted that the COPS event includes not only material facts, but opinions deduced from the flimsiest of observations and those can be wrong. 7. He contends that the information collected is 'excessive' and not at all 'accurate'. It is also intrusive to an unreasonable extent on the personal affairs of the lives of himself and his wife. He further contends that the requirement of 'accuracy' is clearly breached in the report. 8. He submits that by its claim of immunity from scrutiny pursuant to section 27, the Respondent has abandoned any attempt at proving that the COPS report is 'accurate, not excessive or intrusive'. Further, he says that this blanket right to store information of any kind, correct or otherwise, maliciously collected or otherwise, without certainty that it may be used properly or otherwise, without recourse or avenue of redress, is a breach of a citizen's basic human rights. It is repugnant for the Police to impute such intentions to the Legislators. 9. He submits that the Tribunal has the power to intervene in the matter. Discussion 1. As noted, Sergeant Hobbs outlined the use of information stored in the COPS database for intelligence gathering and assessment, and the use of that information when creating strategies and responses relevant to the Agency's core functions. He stated: COPS provides operational Police with information concerning safety risks such as the presence of firearms or prior violent behaviour. This enables Police officers to assess any risk to themselves and/or members of the public and to provide an adequate response to any associated risk. It is also used to identify crime trends relating to specific persons or specific areas. COPS supports crime reduction through improving the speed and ease with which crime information can be recorded and accessed. It also provides data to support key policing strategies such as the targeting of recidivist offenders. Police officers utilise COPS to record the details of activities reported by the public and/or witnessed by Police. For example after attending the scene of a crime Police officers record the details of what was reported to them and their observations in COPS as an 'Event'. The specific details are categorised as cither a single 'Incident' or multiple 'Incidents' within an 'Event'. A COPS 'Event Narrative' is stored against the 'Event' and is not categorised against individual 'Incidents' within the 'Event'. Intelligence officers use this 'Event' information and other stored data, such as 'Information Reports' for developing strategies to reduce crime by targeting particular locations, offenders or through identifying victims at risk. Such persons would include victims of purported domestic violence. COPS data is available to police officers and other unsworn personnel in a Local Area Command. Examples of this are the Domestic Violence Liaison and Ethnic Community Liaison officers who can identify areas of concern, and then formulate strategies in accordance with the New South Wales Police Force core objectives. The data stored on COPS also informs risk assessments to ensure that appropriate provisions are made to ensure the safety of both Police and the Community where Police intervention or action is required. 1. He also acknowledged a role the COPS data played in enabling quality review and monitoring of process and investigations. He said that the COPS does have some administrative functions: Although COPS is primarily an operational policing system it does have some administrative functionality so as to ensure the smooth running of the system. Examples of these administrative functions are the monitoring and allocation of job or role specific profiles and auditing. For example, once a COPS 'Event' is created, COPS has a process for the allocation of tasks to Police officers so that the matter can be properly investigated. This administrative aspect enables COPS lo perform its core function of assisting Police officers with law enforcement activities. 1. BVU appears to be arguing that the COPS data is not protected by section 27(1) of the PPIP Act because it does have some administrative functions. 2. This issue was considered by Judicial Member Molony in AEZ v Commissioner of Police. NSW Police Force (No 2) [2013] NSWADT 91 in which he considered the issue of a request for amendment under section 15 of the PPIP Act and whether the function of determining whether to amend or delete AEZ's personal information that was stored in the COPS database is an administrative function of the agency.. He referred to a number of authorities that considered similar questions and concluded at paragraphs [16] – [20]: 16 As a consequence I reject AEZ's submission that recording and collecting information about her in the COPS database is an administrative function. In my opinion it was collected and recorded in connection with a core Police function. 17 Next, AEZ argued that the process of considering a request to amend or delete information under s 15 of the PPIP Act is an administrative functions, unrelated to the core function of the Agency. I do not accept this submission. 18 I agree with the Agency that information collected and held in connection with a core function does not change its character as a result of being held by the Agency (see ACP v Commissioner of Police, NSW Police Force [[2011] NSWADT 249] at [27]) or because an application is later made to amend or delete it. The Agency holds the information in connection with its core function of providing Police services in the sense described in HW, and not in connection with its administrative or educative functions. An application to amend or vary that information does not change the character of the information, nor is does it change the function with respect to which the agency holds the information. It remains information held in connection with the provision of Police services, a core function of the Agency. Conclusion 19 It follows from the above that I agree with the Agency that the COPS event summaries cannot be amended or deleted under the PPIP Act. The Agency is exempted from the operation of the Act and has immunity from the information protection principles with respect to them. 20 As a result AEZ's application must be dismissed. 1. In my view, that is the correct approach. 2. I note BVU's concerns in regard to the lack of external scrutiny in regard to information in the COPS database to ensure the information that the Respondent has collected is not excessive and that it is accurate. I also note his contention that the COPS event intrudes on the personal affairs of the lives of himself and his wife to an unreasonable extent. However, I do not agree with BVU's submission that the Tribunal has the jurisdiction to consider the matter. 3. I agree with the Respondent that the exemption provided by section 27 of the PPIP Act applies to the COPS event. In my view, as a consequence of the application of section 27, the Respondent is exempted from the operation of section 15 of the PPIP Act in regard to this information. 4. It follows that the Tribunal has no jurisdiction to consider the matter. As a result BVU's application must be dismissed. Orders The application is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 20 April 2016