Information Access Case Note: DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39

Read the full decision here DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39. 

Summary

In this matter, the Appeal Panel upheld the decision of the Tribunal in DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193. The decision concerned the disclosure of details of an investigation into an alleged assault involving the appellant to the Commissioner for Victims Rights. The Tribunal decided that the conduct was covered by the exemption to the Information Protection Principles (IPPs) for the NSW Police Force under section 27 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). This was because the conduct was not in connection with the exercise of an administrative or educative function of the agency. Further, as the Commissioner of Victims Rights was requesting information under section 12 of the Victims Rights and Support Act 2013 (NSW), the exemption under section 25(b) of the PPIP Act would also apply. This was because non-compliance was necessarily implied and reasonably contemplated in order to comply with that Act.

What you need to know

The decision is about the exemption for the NSW Police Force to comply with the IPPs under section 27 of the PPIP Act. Section 27(1) provides that the NSW Police Force is not required to comply with the IPPs, however, section 27(2) states the IPPs apply to the NSW Police Force in connection with the exercise of their administrative and educative functions. This exemption also applies to other specified agencies such as the Independent Commission Against Corruption and New South Wales Crime Commission.

The decision confirms the legal test for section 27 and provides guidance about the activities of the agency that are not considered to fall within its administrative or educative functions.

As a secondary matter, the decision also considered the exemption under section 25 of the PPIP Act, which states that a public sector agency is not required to comply with certain IPPs (under sections 9, 10, 13, 14, 15, 17, 18 or 19) if the agency is lawfully authorised or required not to comply with the principle concerned (section 25(a)), or 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 (NSW)) (section 25(b)).

Legislative background

Information Protection Principles (IPPs)

Section 18 Limits on disclosure of personal information (IPP11)

Specific exemptions from IPPs

Section 25 Exemptions where non-compliance is lawfully authorised or required

Section 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)

Review requirements and jurisdiction

Section 53 Internal review by public sector agencies

Section 55 Administrative review of conduct by Tribunal

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) Making of internal appeals

Factual background

The decision is an appeal from the outcome of an administrative review of the conduct of the agency by the Tribunal. The relevant conduct arose out of an alleged assault where police attended and a COPS Event was created. Following the incident, the appellant applied for victims compensation under the Victims Rights and Support Act 2013. In the weeks following the alleged assault, the Commissioner for Victims Rights wrote to the relevant Local Area Commander seeking further information about the incident. In particular, the Commissioner sought a report outlining the status of the investigation and ‘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’. The letter said the information was being sought ‘[i]n terms of the arrangement made with NSW Police and the Commissioner of Victims Rights power under Part 3, Division 1, Section 12 of the Victims Rights and Support Act 2013.’ The investigating detective provided a response which advised that the investigation would be suspended due to lack of evidence and contained the opinion that the appellant was the suspect and not the victim of the assault.

Tribunal findings

The Appeal Panel found no error of law in the Tribunal’s decision that:

• the relevant conduct was not subject to the IPPs because it was not in connection with an administrative or educative function of the agency (section 27 of the PPIP Act); and
• even if the IPPs were to apply, the agency was not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 of the PPIP Act  because non-compliance was necessarily implied and reasonably contemplated under the Victims Rights and Support Act 2013 (section 25 of the PPIP Act).

In relation to section 27, the appellant contended on appeal that the engagement with the Commissioner of Victims Rights was not ‘part of any policing function as it was not related to crime investigation and prevention or keeping the community safe’, or ‘part of the core functions of police’ (at [20]). The Appeal Panel had regard to the decision of Commissioner of Police, New South Wales Police Force v YK (GD) [2008] NSWADTAP 78 (YK) which identified at [17]-[21] that the test under section 27 is not to identify the core functions of the agency but to first apply the blanket exclusion from the operation of the IPPs to all of its functions. It is then necessary to consider the qualification under section 27(2): ‘[t]he question is simply whether the activity is brought back under the regulation of the Act because it belongs to the ‘administrative’ or ‘educative’ services of the Police Force’ (YK at [20]).

The Tribunal confirmed the approach to the exemption under section 27 as follows (as set out at [18]):

… 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).

The Appeal Panel considered the Tribunal’s reasoning in relation to the conduct in question, noting at [27]-[31]:

• The information in issue related to the investigation of allegations concerning an alleged assault for which Victims Compensation was being claimed.
• 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’.
• 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.

In relation to the exemption under section 25, the Appeal Panel noted that the letter from the Commissioner of Victims Rights to the Local Area Commander referenced the power that authorised it to obtain the information about the alleged assault and the legislative basis for seeking the information (at [32]-[33]). The Appeal Panel noted the Tribunal had referred to the decision in PN v Department of Education and Training [2010] NSWADTAP 59, which states at [54]-[55]:

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.

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.

Tribunal outcome

The appeal was dismissed. The Tribunal concluded at [43]:

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.