GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2 (12 January 2004)

Last Updated: 12 January 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: GA and Ors v Department of Education and Training and NSW Police [2004] NSWADT 2

PARTIES: APPLICANTS:

GA, GB, GC, GD and GE

RESPONDENTS:

Director, Department of Education and Training

Commissioner of Police, NSW Police

FILE NUMBERS: 023250

033164

HEARING DATES: 30/04/2003, 11/06/2003, 28/07/2003, 29/07/2003

SUBMISSIONS CLOSED: 29/08/2003

DECISION DATE: 12/01/2004

BEFORE: Robinson MA - Judicial Member

LEGISLATION CITED: Freedom of Information Act 1989

Police Act 1990

Privacy & Personal Information Protection Act 1998

CASES CITED: Commissioner of Police NSW v "N" [2003] NSWSC 943

APPLICATION: Privacy - information protection principle - personal information - use

Privacy - information protection principle - retention and security

Privacy - privacy code of practice - contravention of

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANTS

J Corker, solicitor

RESPONDENT REPRESENTATIVE: FIRST RESPONDENT

S Free, solicitor

SECOND RESPONDENT

C Capper, advocate

PRIVACY COMMISSIONER

J Gaudin, solicitor

ORDERS: 1. The applicants' applications against the first respondent are dismissed insofar as they relate to transactions 1 & 3

2. The applicants' applications against the second respondent are dismissed

3. The matters against the first respondent be re-listed for a planning meeting for the purpose of fixing the transaction 2 issue for hearing.

Reasons for Decision:

1 This is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Act or the Privacy Act") for a review of the conduct of two public sector agencies in relation to their dealing with alleged personal information of the applicants. It is alleged by the applicants that the respondent contravened a number of information protection principles (sections 8, 9, 10 and 11(collection issues), 12 (retention & security), 13 (access to information), 16 & 17 (use), 18 & 19 (disclosure) of the Privacy Act) and compensation is sought along with other orders pursuant to section 55(2) of the Act. The respondents' case is that there was no breach of the Act established and, if there was, exemptions from compliance applied.

2 The applicants are a father and his three (at about the relevant time) secondary school-aged sons and a female friend of one of the sons. On their application I directed that their names not be published in these proceedings. I was referred only certain stated and agreed issues to be listed for hearing (termed in the application against the first respondent as "transactions 1 & 3"). There are accordingly other issues that will remain for another day (transaction 2). Internal reviews were conducted by both respondents and I am satisfied that the Tribunal has jurisdiction to hear the matters, which was heard over 4 days. The matters were heard together and all parties were legally represented. On the second day of the hearing, the second respondent, NSW Police, submitted that it should not be a party for a number of reasons. I ruled that it should for the reason given on the day.

3 All matters were heard together as they related to the same series of events. It was agreed between the parties during the course of hearing that the Tribunal should go on to determine issues of "liability" alone and reserve the question of any consequential orders to another day.

4 As the lengthy evidence transpired, the case primarily involved events on three particular dates. On 5 November 2000 the police attended the applicant family's home (applicants GA, GB, GC and GD - ("the applicant family")) to interview GE, the then girlfriend of applicant GC. GE had been in a serious domestic dispute with her mother and the police had already been called to her home. On 10 November 2000, the police attended the Sydney school of GE and GC and spoke with the Principal (who I will not name in these reasons) about GE and the applicant family. On 23 October 2001, the Principal wrote to the police in response to a letter from them relating to an internal review of police conduct (after complaints were made by the some applicants to the police, inter alia, about them failing or refusing to take out an apprehended violence order ("AVO") to protect GE, then a young school-aged woman no longer living with her family). On each of these occasions, the applicants contend that personal information was collected, used and disclosed in breach of the Act.

5 I note that at one stage in the documentation before the Tribunal the applicant GA indicated that the mother of the applicant family should also be named as a party at least in the proceedings relating to the second respondent as she was mentioned in the internal review. It is a matter for the mother of the applicant family to move the Tribunal that she be admitted as a party. In the absence of any formal application, I make no direction joining her as a party to these proceedings.

6 Documentation before the Tribunal included the following: The internal review and related material regarding the first respondent (exhibit 1) and the second respondent (exhibit 2); the statement of the applicants' case against the first respondent (exhibit 8); the statement of the applicants' case against the second respondent and related documents (exhibit 3); a bundle of documents from the subject school produced by the first respondent (exhibit 4); some documents released under freedom of information legislation by the second respondent setting out some background information (exhibit 5); directions to the first respondent issued by the Privacy Commissioner under section 41 of the Act dated 21 June 2000, 1 October 2000, 31 October 2000 and to a number of agencies dated 31 March 2003 (exhibit 6); and directions to a number of agencies issued by the Privacy Commissioner under section 41 of the Act dated 28 September 2000, 1 August 2000, 28 September 2000, 29 December 2000 and 1 June 2001(exhibit 7).

7 An affidavit filed 17 April 2003 was read from the school Principal, who gave evidence first. Also read was a lengthy affidavit from the applicant father, GA, sworn 22 May 2003, and an affidavit from the three sons, GB, GC and GD, each sworn 22 May 2003, and one from GE, sworn the same day. An affidavit from the applicant family's mother was also read sworn 23 May 2003.

8 Written submissions were helpfully presented to the Tribunal by the applicant dated 10 June 2003 and 31 July 2003; the first respondent filed 11 April 2003 and 31 July 2003; the second respondent dated 24 February 2003 and submissions handed up on 11 June 2003; and the NSW Privacy Commissioner's submissions handed up on 29 August 2003 and dated 15 August 2003.

9 In addition to his affidavit, the principal gave oral evidence and was cross-examined. In brief, he said that he was an experienced school principal and he is responsible for the welfare, discipline and conduct of students at the school. He said that on 10 November 2000 Constables Holdem and Mitchell of the relevant police station attended the school. He said they were investigating allegations of a serious domestic disturbance in the household of GE in which she was assaulted and which occurred on 5 November 2000. He provided background information which he thought was relevant to their investigation. He told them that she had sought advice from the school Councillor about being pregnant and was advised to see a doctor or take a test. She purchased a testing kit and left it where her mother could see it. The principal considered that she had done this on purpose in order to "set her mother up" and provoke a fight at home. It was also alleged by the principal that GE was immature, cried in order to suit her advantage and that she "had a hard time determining what is the truth".

10 The principal also spoke of the events leading up to his letter to the police dated 23 October 2001. He said he was requested by Chief Inspector Donovan to provide a written report in connection with a complaint concerning alleged police inaction. He received a letter from the police (exhibit 3, attachment O) dated 17 Oct 2001 requesting the information and he responded to it. He was told by Chief Inspector Donovan that any such information would be kept strictly confidential. In that letter (exhibit 1) the principal made quite a number of observations of that the applicants take issue with involving personal information and information that GE might be under "undue influences" by the applicant family. There is then set out some information that put the applicant family in a bad light. There is also some information regarding the applicant father's third son, GD, to the effect that he was involved in and was charged by the police following a fire at the school in June 2001.

11 The principal was cross-examined extensively about the matters he put in his letter of 23 Oct 2001. On numerous occasions he failed to recall details of many of the events written about and he preferred to rely on documents written at the relevant time. He did recall that in November 2000 and he was not aware of the Privacy Act or how it applied to the school. I accept that he is a witness of truth. However, his memory of details of the relevant events is not good and where there is a difference between his memory and the contemporary documentation, I prefer to accept the documentation.

12 On the second day of the hearing, evidence was given by GD, the third son of the applicant father. He gave evidence dealing with the allegations concerning the applicant family in the principal's letter of 23 October 2001. He denied ever being involved in or charged for any criminal offence including any breach of security at the school in June 2001. He said that the inaccurate information had been "published and propagated by the school throughout the school staff and student population following my departure in July 2001". In cross-examination, he said that this part of his evidence was based on rumours that he had heard around the school after he had left the school. While I generally accept the evidence of this applicant witness, I cannot accept evidence in such a wide and general form as that which I have just set out in quotation marks.

13 In addition, the applicant father's second son, GC gave evidence on the second day of the hearing. In his affidavit and oral evidence, he discussed in detail the incident that occurred on the night of 5 November 2000 when his girlfriend (applicant GE) telephoned him in apparent distress. She said she needed help quickly as her mother and her mother's female partner were bashing her and would not let her leave the house. He went over there and took GE to the applicant family home where Constables Mitchell and Holdem soon arrived to interview GE. He described the conduct of the interview and the various physical injuries that were apparent on his girlfriend. He also denied any involvement in the school fire that occurred in June 2001. In cross-examination, GC admitted that the police were investigating what they believed to be a domestic or family dispute and that there were allegations that his girlfriend had in fact assaulted her mother and that the police were following up the assault allegation.

14 On the third day of the hearing, oral evidence was given by the girlfriend, applicant GE. In conjunction with her affidavit, she gave detailed evidence regarding background information concerning the domestic dispute at her family home and some details of the incident that occurred on 5 November 2000 where she said she was subject to domestic abuse and physical assault before she went over to the applicant family's home and was interviewed by the police. She said that her mother had reported to the police that she had assaulted her. The next day, she reported the assault to the school welfare teacher who acknowledged the injuries she bore and reported the incident to be Department of Community Services ("DOCS") who ultimately put her into a refuge. She gave other evidence concerning her dealings with DOCS and the police and her attempts to have an AVO taken out against her mother. The police refused to assist her in this regard. DOCS eventually agreed to assist her to seek an AVO. She also gave evidence about an alleged pregnancy she was said to have had that was contained in the numerous pieces of personal information given by the principal to the police. She denied that she was pregnant during her time at the school. However, she did discuss with the school councillor a hypothetical situation involving pregnancy at school. She also gave evidence in considerable detail that she said countered or denied the many pieces of information recorded by the police in their reports (COPS reports) and by the principal. In cross-examination, she said that she did ask the police about taking out an AVO on 5 November 2000 and they would not help her.

15 Also on day three of the hearing, evidence was given by the applicant father's eldest son, applicant GB. His evidence was to the effect that he was never charged in relation to any fire at the high school and was never associated with or involved in the lighting of any fire to the high school and that he has never been convicted of any criminal offence. He also indicated that he took offence with the remarks of the principal concerning the applicant family in these proceedings to the extent that they relate to the boys of the applicant father.

16 An affidavit from the mother of the applicant family sworn 23 May 2003 was read. She gave evidence detailing, among other things, the events that occurred at the family home on 5 November 2000. She said that the information contained in the relevant COPS reports is not true and correct.

17 An affidavit from the applicant father sworn 22 May 2003 was read and he was not required for cross-examination. There is a very large amount of information attached to this affidavit and much of it is not relevant or marginally relevant to these proceedings. It is clear that the mother and father of the applicant family have taken it upon themselves to assist the girlfriend of one of their sons in circumstances where the girlfriend had left home while still at school and was plainly in need of care and attention. The family was not satisfied with the efforts of the police and DOCS and did what it could to assist GE.

18 It is also clear from the above evidence that there is a longstanding dispute between the applicant family and GE and the police. Various complaints have been made regarding the actions of the police concerned (including relating to police conduct not mentioned in these proceedings) and freedom of information applications have occurred and documents been examined. In addition, the Ombudsman's office has also been involved and it is clear to me that the applicant family and GE by looking to the Tribunal to, in effect, undertake an investigation of all of the matters that have been put before the Tribunal into evidence. Such is also evident by some of the remedies sought by the applicants in these proceedings that include the "reinvestigation" of a number of matters. The Tribunal will not ordinarily become involved in disputes at this level of investigation. The Tribunal must be limited in its inquiries to matters relating to conduct concerning breaches of the Act and is not to be concerned with other matters no matter how interested in applicants may be in relation to them. The Tribunal's duty is to deal with conduct relating to the Privacy Act alone and nothing more.

19 Included in the affidavit of the applicant father are a number of COPS reports that set out details of, relevantly, the events of 5 November 2000. There is also a COPS report concerning an event dated 15 Jan 2000 where the police attended a domestic dispute at the family home of applicant GE at a time when she was 14 years old and was having extended arguments with her mother and her mother's female lover. The father had left the family home two years prior to then and GE said that she wanted to leave the home.

20 In the COPS report of 5 November 2000, there is reference to the argument being caused by a mobile phone bill and that the mother of GE was advised that the child might be in need of a "care warrant" if she refuses to stay at home. The same COPS record also sets out an entry relating to the police visit to the principal at the school on 10 November 2000. It sets out details that the principal divulged to the police officers that day. The officers were, in part, following up on the events of 5 November, and were also following up a further incident whereby it was alleged that GD had "harassed" younger brother of GE at school. During this discussion, it is plain that significant personal information about GE was given to the police in the conduct of their investigations. She challenges the accuracy of much of this information in these proceedings.

The Submissions

21 A preliminary issue ought to be addressed first. The first respondent argued that the applicants should not be permitted to argue collection issues (ss 8, 9 & 10 of the Act) and were limited to arguing use and disclosure issues alone under the Act as they had not raised any collection issues when first making the request for an internal review under the Act. It was put that the Tribunal did not have jurisdiction to do with collection issues as a consequence. Under the s53(3)(d) of the Act, the applicant must lodge an application for an internal review within 6 months of first becoming aware of the conduct the subject of the application (any later lodgement must be with the agency's permission). As the applicant here did not make any claims relating to collection within that time, and did so first at the Tribunal hearing, the first respondent was deprived of the ability to investigate the collection issues more fully or properly. The applicants argued that, broadly construed, the application for an internal review should be considered to have included collection issues and that section 53 of the Act should be construed very broadly. The said application (at exhibit 1) does not expressly include alleged collection breaches. It alleges specified use and disclosure breaches only. The conduct to which the application relates is clearly set out. The difficulty I have with the applicant's second submission is that too broad a construction of section 53 of the Act impermissibly broadens the inquiry before the Tribunal and, in the present case, operates to the potential disadvantage and prejudice of the first respondent.

22 It is preferable in all cases for the agency to have the ability to undertake an internal review prior to any matter coming to the Tribunal. If it were otherwise, the Tribunal will be burdened with ever expanding or amended applications for review that bore no or little resemblance to the original application for an internal review.

23 It is plain on the face of the internal review document of the first respondent dated 28 October 2002 that the first respondent was only dealing with the complained of conduct and not with collections issues in the conduct of the internal review. I accept the first respondent's submissions in the present case primarily because of the prejudice issue and the fact that the applicants took the trouble to identify with some precision the alleged breached of the Act here, as opposed to a request for the agency to merely review some conduct that was complained of. Accordingly, the Tribunal will not consider breaches of the Act relating to collection of personal information by the first respondent.

24 In the main proceedings, the applicant conceded that the personal information collected by the police at GE's home and the applicant family's home on 5 November 2000 was covered by the exemption in section 23(5)(d)(ii) of the Act (which exempts a public sector agency from a disclosure breach in order to investigate an offence).

25 As to the incident where the police attended at the high school and spoke to the principal on 10 November 2000, the premise of the applicant's case is that the Tribunal should accept the police were not there investigating an offence not that they were there dealing with other matters concerning, inter alia, an AVO or that they were investigating child protection issues relating to GE or they were investigating a separate incident concerning GD and the younger brother of GE at school. On my reading of the COPS report relating to the day, I find that the police officers were investigating a number of issues on that day that plainly included the alleged assault by GE on her mother (and by her mother on her). This is evident by the words in the report "The [principal] was aware of what had gone on as GE had presented herself to him on Monday with allegations that she had been assaulted at home."

26 This evidence and the evidence of the principal concerned (especially at paragraph 3 of his affidavit) makes it plain that the police were conducting reasonably necessary and formal inquiries in order to investigate criminal offences. As a consequence, the first respondent and the second respondent did not need to comply with the disclosure provision, section 18 of the Act.

27 As to the letter of the principal dated 23 October 2001, the applicants submitted that there were a number of breaches of the Act. The first respondent conceded that, in the absence of any exemption applying, the information contained in the said letter was plainly personal information when the meaning of section 4 of the Act and its disclosure was a breach of section 18(1)(a)&(b).

28 In relation to the letter dated 23 October 2001 the respondents each rely on one of the numerous exclusions contained in the definition section at section 4(3)(h) of the Act which provides that "personal information" does not include "information about an individual arising out of a complaint made under Part 8A of the Police Act 1990". Accordingly, it is said that the entire letter which was a response to a letter from the police dated 17 Oct 2001, arose out of a "Part 8" inquiry.

29 Part 8A of the Police Act 1990 relates to, inter alia, conduct of police officer that constitutes an offence or, that is not unlawful but is unreasonable, unjust, oppressive or improperly discriminatory in its effect. The terms of the complaint were set out in the letter from the police service to the principal dated 17 Oct 2001 (exhibit 3 attachment O). It was a complaint against the two officers who visited the applicant family home on 5 Nov 2000 and GE's report to the school of an assault the next day. The complained alleged inaction by the two police officers concerned. In the letter, the principal was asked quite a number of questions regarding the complaint and, in particular, he was asked whether there has been any "undue influence" on GE by the family of her boyfriend.

30 I accept the submissions from the Privacy Commissioner that on a proper construction of the section 4(3)(h) of the Act, the exemption relates to information created or revealed as a result of an investigative process and not to information that is only linked in some indeterminate way with the investigation.

31 I consider that the principal's response in his letter dated 23 October 2001 properly addressed the questions raised by the letter from police service and was wholly information arising out of the Part 8A complaint. Accordingly, none of information conveyed by the principal was "personal information" and the Act did not apply to it at all. This finding applies to both respondents.

32 The second respondent also relied on the exemption contained in section 27 of the Act which provides that a number of criminal and investigative agencies including the police are not required to comply with the information protection principles except in connection with the exercise of their "administrative and educative functions". There was some argument relating to whether or not the personal information the subject of the proceedings was gathered or disclosed in the context of the police's investigative or operational functions and therefore was not as an exercise of its administrative or educative functions. The real question is, what is the scope of the second respondent's "administrative functions". I do not need to answer this question, given the finding regarding Part 8A of the Police Act 1990. If I was required to answer it I would observe that the question involves construction of a very different legislative setting to that of the Freedom of Information Act 1989. In Commissioner of Police NSW v "N" [2003] NSWSC 943, Justice Cripps considered the expression an agency's "administrative functions" was very wide for the purposes of the FOI Act. It was found that it included police operational matters. However, I doubt the reasoning there would apply in the present case or in the context of the Privacy Act.

33 Further, given the findings I have made in the matter, I do not need to discuss the section 41 directions made under the Act which were issued to the respondents from time to time (exhibits 6 & 7). They exempted the respondents from compliance with certain information protections principles for specified periods. As is pointed out by the applicants, even if they did apply (and it was not contested that they did not apply) the directions did not exempt the respondents from sections 8, 11 and 16. I also do not need to discuss the first respondent's Privacy Code of Practice which was effective from 22 December 2000 and which was attached to the first respondent's written submissions.

34 Accordingly, for the above reasons, I determine that there are no breaches of the Act established or there are no breaches that are not covered by the exemptions disclosed above. I shall dismiss the application in relation to the second respondent and set the matter down for further hearing with the first respondent concerning the issue known as "transaction 2".

Determination

35 The applicants' applications against the first respondent are dismissed insofar as they relate to transactions 1 & 3.

36 The applicants' applications against the second respondent are dismissed.

37 The matters against the first respondent be re-listed for a planning meeting for the purpose of fixing the transaction 2 issue for hearing.