Privacy Case Note: Commissioner of Police (NSW Police Force) v DVT [2022] NSWCATAP 231
Read the decision here: Commissioner of Police (NSW Police Force) v DVT [2022] NSWCATAP 231
Summary
The Commissioner of Police (NSW Police Force) (the Appellant) appealed a decision published on 30 April 2021 (the Breach Decision) and a decision published on 8 October 2021 (the Remedies Decision).
The Breach Decision found that the Appellant breached s. 14 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) by not providing the Respondent access to personal information held by the Appellant. Further information about the Breach Decision is summarised in an IPC case note: https://www.ipc.nsw.gov.au/dvt-v-commissioner-police-2021-nswcatad-108.
The Remedies Decision ordered that the Appellant refrain from repeating any of the conduct of concern detailed in the Breach Decision and perform IPP 7 by providing the Respondent with access to all of the Respondent’s personal information requested.
In rejecting the grounds of the appeal, the Appeal Panel found that the Tribunal was not limited to considering whether the Appellant had failed to provide access to personal information without excessive delay and that, viewed substantively, the relevant conduct for review by the Tribunal included that the Appellant had not provided the Respondent with access to personal information which he had requested in alleged contravention of s. 14.
What you need to know
A failure to provide an individual with access to their personal information without excessive delay may amount to a deemed denial of access. The onus is on the agency to provide evidence supporting the withholding of information.
Section 14 of the PPIP Act does not include in its wording any qualifications, requirements or conditions in respect of an individual’s exercise of their right to access their personal information held by an agency.
Legislative background
PPIP Act
Section 14 access to personal information held by agencies (IPP 7)
Section 20 general application of information protection principles to public sector agencies
Section 24 exemptions relating to investigative agencies
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)
GIPA Act
Section 60 decision to refuse to deal with application
Review requirements and jurisdiction
Administrative Decisions Review Act 1997 (NSW)
Section 65 power to remit matters to administrator for further consideration
Factual background
The Breach Decision found that the Appellant breached s. 14 of the PPIP Act by not providing the Respondent with access to personal information held by the Appellant in response to five emails. In relation to another email (identified as email 6) the Breach Decision found that the Appellant had not breached s. 14. In those proceedings, the Appellant argued that it was lawfully authorised not to comply with the requests made in emails 1 to 3 due to the effect of a Deed of Release between the parties dated 22 November 2011.
The Remedies Decision ordered that the Appellant refrain from repeating any of the conduct of concern detailed in the Breach Decision in contravention of IPP 7 in relation to any IPP 7 access requests made by the Respondent. The Tribunal made a further order that within 30 days of 8 October 2021, the Appellant was to perform IPP 7 by providing the Respondent with access to all of the Respondent’s personal information requested in emails 1 to 6.
Grounds of Appeal: Breach Decision
The grounds of appeal in relation to the Breach Decision related to:
- the Tribunal’s decisions regarding an Undertaking made with respect to the Deed of Release, including the Tribunal’s exercise of power, adequacy of reasons, and procedural fairness
- scope of the Tribunal’s jurisdiction, particularly relating to its construction of the internal review application
- whether the Tribunal had misapplied s. 14 of the PPIP Act
- whether there was no evidence to support findings of fact.
Grounds of Appeal: Remedies Decision
The grounds of the appeal in relation to the Remedies Decision related to:
- whether the Tribunal had misapplied s. 14 of the PPIP Act
- whether there was a lawful basis for the Tribunal’s finding of non-performance by the Appellant
- whether the Tribunal applied a wrong principle of law i.e., ‘real issues in dispute’ as opposed to ‘the correct and preferable decision’
- whether the Tribunal erred by ordering the Appellant to provide the Respondent with access to the information requested by emails 1 to 6 when that information, or a subset of it, may be exempt from disclosure.
Appeal Panel findings
The Appeal Panel agreed with the Privacy Commissioner’s submissions that:
- The Respondent’s complaint, reasonably construed, was that the Appellant failed to acknowledge his request within a reasonable time and also that the Appellant had failed to provide him with access to his personal information.
- The redress which the Respondent sought from the internal review was immediate access to his personal information.
- The Respondent’s request for internal review was not limited to the question of delay but was also directed at the substantive failure to provide him with access to his personal information.
In relation to the scope of the Tribunal’s jurisdiction, the Appeal Panel held that because there was no evidence supporting the withholding of information the Appellant had breached s. 14.
The Appeal Panel held that the Tribunal was correct to conclude that s. 14 does not include in its wording any qualifications, requirements or conditions in respect of an individual’s exercise of their right to access their personal information held by an agency.
Appeal Panel outcome
The Tribunal set aside Order 1 made on 30 April 2021 and otherwise dismissed the appeal.
