Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39 Hearing dates: 11 December 2018 Date of orders: 13 February 2019 Decision date: 13 February 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J McAteer, Senior Member Decision: Appeal dismissed. Catchwords: ADMINISTRATIVE LAW- Privacy – exemption – educative and administrative – exemption by other law – no error of law - Legislation Cited: Civil and Administrative Tribunal Rules 2014 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Victims Rights and Support Act 2013 Cases Cited: Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 Crewdson v Central Sydney AHS [2002] NSWCA 345 PN v Department of Education and Training [2010] NSWADTAP 59 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: DKB (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: DKB (Self Represented) (Applicant) Crown Solicitor's Office (Respondent) File Number(s): AP 18/41386 Publication restriction: S-64 (1) (a) prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Not applicable Date of Decision: 24 August 2018 Before: P Molony, Senior Member File Number(s): 2018/00082146 REASONS FOR DECISION Background 1. This is an appeal from a decision made in the Administrative and Equal Opportunity Division of the Tribunal published on 24 August 2018 (which we will refer to as the Decision). The Decision concerned an application brought by the appellant concerning an alleged breach of privacy by the respondent agency (the NSW Police Force) in the course of their dealing with the appellant over a reported incident. 2. That privacy application arose in the context of the applicant making a claim as a victim of crime and it is in respect of the NSW Police involvement with that claim that the appellant says his privacy was breached. As a result of that alleged breach the appellant applied to the Tribunal for administrative review. The Tribunal found that the governing privacy legislation exempted NSW Police from the relevant applicable privacy provisions in the context of the specific police action. As a result the Tribunal dismissed that application. The appellant appeals that Decision. Summary of the Decision 1. In understanding this appeal it is helpful to have a summary of the Decision which is set out as follows: 1. The appellant said that he was assaulted next to the door of his Sydney home unit. The assailant was from next door and Police attended. The appellant and the assailant gave police differing versions of events claiming that each other was the protagonist. Police recorded the information in a COPS Event. No person was charged or otherwise dealt with for any offence. 2. The appellant subsequently applied for victims compensation and made a claim for victims support under the Victims Rights and Support Act 2013. (the 'Victims Act'). In considering the application the Commissioner of Victims Rights wrote to the Local Area Commander Police seeking any further information in addition to the COPS Event. The letter asked for any information concerning contributory behaviour or criminal behaviour by the appellant consistent with provisions if the Victims Act. 3. The investigating detective wrote a one-page reply which was sent to Victims Services. That reply provided an opinion that the appellant was the likely suspect in respect of any offence. That information was clearly critical of the appellant. 4. The appellant became aware of this reply we infer from the initial decision of the Commissioner of Victims Rights to refuse to provide victims support. The appellant applied for an internal review under the Privacy and Personal Information Protection Act 1998 (The PPIP Act), claiming that his privacy had been breached by Police providing that opinion to the Commissioner of Victims Rights. The appellant claimed that the disclosure was a breach of s 18 of the PPIP Act. 5. The NSW Police conducted an Internal Review under the PPIP Act, and determined that there was no privacy breach. In reaching that conclusion the NSW Police determined that under two provisions of the PPIP Act, police were not required to comply with the disclosure information protection principle (IPP) as set out at s 18. 6. In deciding the review of the Police decision, the Tribunal was asked to decide the matter on the papers. The Tribunal had before it written evidence and submissions from both parties. The Tribunal was required to determine if the review related to conduct (s 55 PPIP Act), to enliven jurisdiction. The Tribunal found that the actions of the officer writing the reply letter amounted to conduct and also decided that some other matters concerning NSW Police staff refusing to provide a copy of a report were not part of the privacy grievance. The Tribunal based some of that decision on the appellant's own evidence and submissions. 7. The Decision describes the Police submissions that s 27 of the PPIP Act exempted them from complying with IPP's generally in respect of their core policing functions. In addition the decision examines a further claim that the police conduct does not breach an IPP because it was sanctioned by another law and is therefore permitted under s 25 of the PPIP Act. 8. The appellant submitted that the Police were relying on the two exemptions for a purpose for which they were not intended, but merely relied on them to "cover up the officer's damaging actions". The Tribunal found that the officer's conduct in writing the email to the Commissioner of Victims Rights fell within the NSW Police Force policing functions and the s 27 exemption applied. In addition the Tribunal found that as the Commissioner of Victims Rights was requesting information from Police under the provisions of s 12 of the Victims Act, then that provision over-rode s 18 of the PPIP Act and the s 25 exemption also applied. 9. In the Decision, there was an analysis of the evidence, the relevant legislation and reference to how the Tribunal (and the Administrative Decisions Tribunal – ADT) had developed and interpreted the meaning of the relevant privacy provisions of the PPIP Act (as they related to the s 25 and s 27 provisions). 10. In the Decision, the Member outlined the legislative provisions, the submissions of the parties and the case law. The Member found that the officer's actions fell within the general policing functions of the NSW Police Force and was not subject to the IPP's (s 27), and that the actions were authorised by the Victims Act s 12, and therefore the relevant privacy provisions of the PPIP Act did not apply (s 25 (b)). Notice of Appeal 1. The Notice of Appeal was filed on 25 September 2018. The Notice of Appeal states that the Decision was received on 31 August 2018. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules) is applicable and requires the appeal to have been filed within 28 days. On this calculation the Notice of Appeal has been filed within time. 2. In the following paragraphs we summarise the Grounds of Appeal. The appellant has not particularised his grounds but matters are set out in somewhat discursive submissions about police actions, motives and integrity as they relate to the appellant's dealings with police over this incident. We note that the respondent attempted to summarise the grounds and in our view that summary fully canvasses the arguments raised by the appellant. We set out those grounds below. Ground 1 1. The Decision is not fair as it allows NSW Police Officers to lie and pretend that the information was an inaccuracy. Ground 2 1. The Decision points of the Tribunal are against the weight of evidence (evidence not mentioned) which provides and supports a different interpretation of the specified law, and reference to other cases. (The appellant states: "The Tribunal had police notes stating that I was arrested and yet the email I say is a breach of privacy states by the officer that arrested me that I was not arrested"). Ground 3 1. The Tribunal erred in finding that the Detective's conduct in writing an email to the Commissioner of Victims Rights was conduct exempt from compliance with the IPP's pursuant to s 27 of the PPIP Act as the email did not solely address the Commissioner's questions. Ground 4 1. The Tribunal erred in finding that the Detective's conduct in writing an email to the Commissioner of Victims Rights was conduct exempt from compliance with the IPP's pursuant to s 25 of the PPIP Act as the email did not solely address the Commissioner's questions. (Essentially the same argument as Ground (3) but applying s 25 PPIP Act). Ground 5 1. That there are inaccuracies in the material leading to further errors in the decision under review. 2. The Appellant also set out detailed matters by way of submissions under a heading: Reasons for Appeal, whereby he canvasses police duties and obligations contrasting this with the actions of the officer who wrote the reply email to the Commissioner of Victims Rights. Appellant's Submissions 1. At the hearing, the appellant made the submission that in his view the conduct that the police officer engaged in constituted lying and the fabrication of evidence and these matters were not part of the officer's official or sanctioned duties and therefore fell outside of any statutory exemption to the PPIP Act. In the appellant's view the Members failure to read the evidence in this manner constituted an error of law. 2. The appellant submitted that the exemptions referred to in the Decision did not apply to the email. In the appellant's view the entire decision (and conduct), is based on the tardiness of the overall approach by police. 3. In general submissions the appellant submitted that the information in question is only part exempt, rather than totally captured by the exemptions in the PPIP Act. Respondent's Submissions 1. The respondent provided detailed written submissions which addressed the two statutory exemptions relied upon by them in the initial proceedings concerning the PPIP Act. The respondent submitted that the conduct in question was correctly identified by the Tribunal, being the recording of the COPS Event by the officer and writing the covering email to the Commissioner of Victims Rights, and an alleged failure of police to advise the appellant of his rights to information under the Government Information (Public Access) Act 2009 (the GIPA Act). 2. The respondent submitted that the Tribunal correctly made a finding of fact that the officer's actions in recording the COPS Event and sending the accompanying email did not constitute any educative or administrative function of police, in that at the time the officer was not engaged in functions of that nature. 3. In addition the respondent submitted that the officer's actions were authorised by the provisions of sections 10, (1) (i), 11 and 12 of the Victims Act. The respondent also relied upon the decision in PN v Department of Education and Training [2010] NSWADTAP 59 ('PN') in respect of the s 25 PPIP Act exemption. Other cases were relied upon by the respondent to set out the meaning and application of the section 25 and 27 exemptions. Specifically the respondent submitted that only one of the exemptions needed to apply for the conduct of the officer to not be in breach of the PPIP Act. 4. Concerning the s 27 exemption, the respondent submitted that the correct approach is to examine the matter from the perspective of a blanket exemption first, due to the drafting of section 27. The PPIP Act identifies that public sector agencies are to comply with the IPP's (s 21). The PPIP Act identifies that the NSW Police Force are exempt from the IPP's due to the operation of (s 27 (1)). However as a final step notwithstanding that general exemption, the decision maker looks at the conduct to find whether it constitutes an educative of administrative function. If it does then the s 27 (1) exemption is negated by the provisions of s 27(2). 5. The respondent submitted that there was no error of law in the Tribunal's decision. In addition the respondent submitted that the appellant was attempting to utilise the privacy legislation for a collateral purpose. (See Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]). This reference appears to relate to the GIPA rights issue which was conceded by both the appellant and respondent as no longer being pressed in the appeal. Appellant's Further Submissions 1. At the hearing of the appeal, the appellant revisited his submission that the officer had engaged in misconduct. In addition he submitted that the engaging with the Commissioner of Victims Rights request was not part of any policing function as it was not related to crime investigation and prevention or keeping the community safe. That is that the actions were not part of the core functions of police. 2. The respondent however submitted that both the ADT and NCAT Appeal Panels had rejected that 'core function' distinction. As set out in Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 (YK). the starting point when considering s 27 is all functions of the respondent have the benefit of the exclusion in s 27(1). From there the question is whether the authority is brought back under the regulation of the Act because it belongs to the administrative or educative function of the respondent. Relevant legislative provisions applying to the decision 1. Sections 18, 25 and 27 of the PPIP Act concern the Decision under appeal. 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. ….. 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). ….. 27 Specific exemptions (ICAC, ICAC Inspector and Inspector's staff, NSW Police Force, LECC, Inspector of LECC and Inspector's staff and NSW Crime Commission) (1) Despite any other provision of this Act, the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission and the New South Wales Crime Commission are not required to comply with the information protection principles. (2) However, the information protection principles do apply to the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the staff of the Inspector of the Independent Commission Against Corruption, the NSW Police Force, the Law Enforcement Conduct Commission, the Inspector of the Law Enforcement Conduct Commission, the staff of the Inspector of the Law Enforcement Conduct Commission and the New South Wales Crime Commission in connection with the exercise of their administrative and educative functions. (Emphasis added) Decision 1. For the reasons which follow, we are of the opinion that the appeal should be dismissed. 2. This is an appeal brought under s 80 of the NCAT Act. By that section the appellant is able to bring an appeal as a right on any question of law or with the leave of the Appeal Panel on any other ground. 3. The appellant did not explicitly seek to categorise the various grounds of appeal as raising questions of law or whether a particular ground was one requiring leave. It is not necessary for us to determine whether the grounds raised questions of law or whether they are other grounds requiring leave, as we are of the opinion that each of the grounds lacks merit. The appeal will be dismissed for the reasons that follow. 4. We observe that the Tribunal addressed the section 27 and 25 arguments with reference to both the evidence and the legal interpretations of the statute as set out in the ADT and NCAT Appeal Panel cases. These cases have been referred to and formed the basis of the respondent's written and oral submissions. 5. The Tribunal set out the relevant section and then observed that if the conduct was in accordance with the clear intention of the section, (conduct that was not educative or administrative in nature) then the exemptions would apply. The Tribunal made a finding at [24] that: The information in issue related to the investigation of allegations concerning an alleged assault for which Victims Compensation was being claimed. 1. The Tribunal then identified that if the conduct in issue is not in connection with an educative or administrative function of the respondent, the respondent is not required to comply with IPP's. 2. We observe that the principles discussed in PN were considered by the Tribunal in the Decision. In addition whilst not specifically referred to in the Decision the concept of the blanket approach re: s 27 as referred to in YK is touched on at [20] of the Decision. 3. The Tribunal identified that the officer was still engaged in an active investigation when he responded to the Commissioner of Victims Rights request. The officer had primary responsibility for that investigation and was undertaking what the Tribunal referred to as 'pure police work' [26]. 4. The Tribunal considered the evidence and by contrast established that the actions and conduct of the officer could not be considered as equating to an administrative task. It appears that this consideration was reinforced by the Tribunal's consideration of the specific nature of the Commissioner of Victims rights request and the nature and terms of the officers specific response. 5. In respect of the s 25 exemption, the following extract is from the letter from the Commissioner of Victims Rights. The Tribunal noted that it was issued under the power arising under: Part 3, Division 1, Section 12 of the Victims Rights and Support Act 2013. 1. In addition reference was made to the provisions of s 44 of the Victims Act concerning contributory behaviour. The officer was specifically asked to provide a brief report on the current status of the investigation as follows: Contributory Behaviour (S.44) … Please also advise whether there was any contributory behaviour on the part of the victim and / or whether the victim was engaging in any criminal offence at the time of the incident. 1. The Tribunal in its reasons identified that in order for the police to comply with the requirements of the Victims Act, non compliance with any IPP's (that might apply) was necessarily implied and reasonably contemplated in accordance with the reasoning in PN at [54]: 54 Further, we do not think that the task required of the Tribunal in deciding whether or not s 25 is applicable requires it to go so far as to make a microscopic comparison of an alternative law to which an agency refers in justification. Section 25 is expressed in broad language. It is enough that 'non-compliance is reasonably contemplated' by the other law. 55 The Tribunal is called upon, as we see it, to consider the subject matter of the alternative law and ask itself, first, is this the kind of subject matter with which a relevant IPP is concerned in the circumstances of the case before it. 1. Having made the findings that it did, the Tribunal was in our view (correctly) entitled to conclude the matter at that stage, and not engage in a further review of the conduct in dispute, as it had been adjudicated as exempt from compliance with the relevant IPP's. 2. Having regard to all of the material contained in the decision in respect of the s 25 and s 27 exemptions we find that the Tribunal in its reasons set out the relevant law and made findings of fact on matters to which that law applied. We discern no error arising from the reasoning process or the sufficiency of reasons. 3. In our view, the Decision displays no error of law or a ground involving leave in finding that the officer was engaged in general policing functions when he wrote the email to the Commissioner of Victims Rights. 4. It is clear from the Decision that the Tribunal addressed the exemptions in turn and had regard to the underlying evidence giving rise to the conduct complained of. In our view it was open to the Tribunal to make the findings that it did on the available evidence. Having made those findings the Tribunal then appropriately considered the meaning of the provisions of the statute. 5. Insofar as the appellant seeks leave to appeal, the appellant needs to establish one of the grounds identified for the granting of leave as articulated by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82], [83] and [84]. Those general principles were there stated as follows: 82 The principles which govern the granting of leave to appeal by the Appeal Panel under s 80(2)(b) should generally be consistent with those which are applied by Courts when considering the question of leave to appeal. These have recently been summarised by the Court of Appeal in BHP Billiton Ltd v Dunning [2013] NSWCA 421. In addition, the Supreme Court has considered the principles which apply when granting leave to appeal to the Court from a decision of the Guardianship Tribunal in a number of cases including SAB v SEM [2013] NSWSC 253. The Guardianship Tribunal has now been absorbed into the Tribunal as the Guardianship Division. As there are alternate rights of appeal from decisions of the Guardianship Division to the Supreme Court or the Appeal Panel (see cll 12 to 14 of Schedule 6 to the Act) both by leave in the case of interlocutory decisions or on grounds other than a question of law, the same principles should apply in deciding whether to grant leave to appeal to the Court or to the Appeal Panel. 83 Further, the Appeal Panel has addressed the relevant principles to be applied when deciding whether to grant leave to extend an appeal to the merits of the decision (under s 113(2) of Administrative Decisions Tribunal Act 1997 (NSW)) in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. These principles may be applied by analogy when considering whether to grant leave to appeal under s 80(2)(b) of the Act. 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. In our view, the appellant has not been able to demonstrate that the Decision was arguably wrong and therefore, it is not necessary for us to consider whether it is appropriate to grant leave because of the presence of one of the matters described in paragraph 84(2)(a) to (e) above. Accordingly, we are of the view that leave should not be granted. 2. We refer to the appellant's submission that the relevant officer of the respondent lied in his communication and that therefore, the protection otherwise given by the PPIP Act should not prevail. In our view, there is no substance to the allegation that the officer lied. To the extent that the officer made a statement adverse to the appellant, that the appellant may have been the "suspect" rather than the victim, that was a statement of the officer's opinion. There is no evidence that it was not genuinely held. 3. Having found that the exemptions were enlivened, it was then correct for the Tribunal to dismiss the claim (in so far as it related to breaches of IPPs). As mentioned above at [19] the residue of the matter before the Tribunal in first instance is no longer pressed by the appellant and as a result we are not required to address that matter in the appeal. Conclusion 1. In all of the circumstances, it is our view that the appellant has failed to establish that the Decision contains any error of law, or any other ground. Therefore the appeal must be dismissed. Orders 1. The Appeal Panel makes the following order: 1. Appeal 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: 13 February 2019