HV v Commissioner of Police, New South Wales Police (No 2) [2010] NSWADT 16 (18 January 2010)

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HV v Commissioner of Police, New South Wales Police (No 2) [2010] NSWADT 16 (18 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
HV v Commissioner of Police, New South Wales Police (No 2) [2010] NSWADT 16


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
HV

RESPONDENT
Commissioner of Police, New South Wales Police Force



FILE NUMBERS:
083238

HEARING DATES:
27 July 2009

SUBMISSIONS CLOSED:
27 July 2009



DATE OF DECISION:
18 January 2010

BEFORE:
Wilson R - Judicial Member





LEGISLATION CITED:
Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002

CASES CITED:


TEXTS CITED:


APPLICATION:
Whether information released was personal information within s. 4 Privacy and Personal Information Protection Act 1998; application of s.4(3)(h) of that Act; application of s.5(3)(k) Health Records and Information Privacy Act 2002; Part 8A of the Police Act 1990; meaning of unlawful in Part 8A of that Act.

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
M Paul, solicitor


ORDERS:
The application is dismissed


Reasons for Decision:

REASONS FOR DECISION

1 The applicant commenced these proceedings in the Tribunal alleging that the respondent had disclosed personal information pertaining to the applicant and thereby breached the provisions of the Privacy and Personal Information Protection Act 1998 and/or the Health Records and Information Privacy Act 2002, where applicable. For the purposes of these proceedings both Acts may be considered as one, as the relevant provisions are identical in each Act, namely the definition of personal information and the exclusion provided in s.4(3)(h) of the first mentioned Act and s.5(3)(k) of the second. For convenience, in these reasons only s.4(3)(h) is mentioned, but the reasoning applies to both. Both sets of legislation are referred to herein as the Privacy Act for simplicity.

2 During the course of the hearing the applicant explained that a great deal of the documents he had placed into evidence were more in the nature of background materials and that the contraventions he alleges came about by reason of the provision of the specific documents discussed hereunder. The respondent agreed that this was correct, so that the issues for consideration were significantly narrowed by the common ground that the parties adopted. The Tribunal was greatly assisted by this common sense approach, for which the parties should be commended. As a courtesy to the parties, given the way they conducted the proceedings at the hearing, the Tribunal should explain that the time taken to publish this decision has come about by reason of the loss of data concerning the matter held on the Tribunal Member’s computer. The data loss was extensive.

3 It should also be noted that exhibit A1 contains medical information about the applicant which the applicant requested the Tribunal to take into account so as to understand why the applicant’s submissions might not have been as lucid as they might otherwise have been. The Tribunal has done this and is of the view that the applicant is clearly suffering from a stressful condition. However, he has been able to formulate his arguments and present his case clearly. The Tribunal notes that the applicant did not tender these documents for the purpose of renewing his earlier application for the appointment of a representative to conduct the proceedings on his behalf.

4 At relevant times the applicant was a serving member of the New South Wales Police Force. Certain events, four in number, occurred at times in the year 2003, each one involving the applicant, who was not on duty on each occasion. In general terms though, each event had a nexus with the applicant’s status as a police officer in that on each occasion the applicant identified himself as being an officer of police. These events gave rise to complaints against the applicant and investigations into his conduct. Several reports were prepared. These reports are contained in exhibit A2, at tab (c), and have been described by the parties as documents No. 9 to No. 14 inclusive. The applicant alleges that the provision of these documents by the respondent to a third party contravened the legislation.

5 The respondent concedes that it provided these documents to a third party for the purpose of investigating a worker’s compensation claim that the applicant had on foot at the time that these documents were provided. It is common ground that the applicant reported a work related injury in August 2003 and lodged a claim some time in September of that year. The precise dates are not important.

6 The respondent however, has not approached this matter by arguing that the provision of the reports was relevant to the worker’s compensation claim and therefore a permissible disclosure of personal information. Instead it has taken the point that the information concerning the applicant contained in these reports was not personal information within s.4 of the Act as it comes within the s.4(3)(h) exemption, that is, it was information about an individual (here the applicant) arising out of a complaint made under Part 8A of the Police Act 1990. This is the only issue requiring determination.

7 The documents under consideration concern different matters and therefore need to be discussed individually. This aspect is taken up later in these reasons.

8 Section 4 of the Privacy Act defines personal information as being information or an opinion about an individual whose identity is apparent or can reasonably be ascertained there from. Clearly the documents come within this requirement. However, s.4(3)(h) excludes information about an individual arising out of a complaint made under Part 8A of the Police Act 1990. Two points should be noted here. First, the subsection requires a finding that the relevant information must have been obtained following a complaint made under Part 8A: whether the document in question is made under that Part is not the critical question. Thus the focus is on the making of the original complaint and determining whether or not it has been made under Part 8A. Secondly, the subsection will apply to all information that arises out of such a complaint. This provides a broad nexus between the complaint and the information under consideration. Consequently, any information obtained by way of investigation of a Part 8A complaint will fall within the exclusion. The Privacy Act has no application to information falling within this exclusionary provision.

9 Part 8A of the Police Act 1990 (formerly the Police Service Act 1990) sets up a statutory regime concerning the making of complaints about the conduct of police officers. Individuals have of course always been able to make complaints about the conduct of police officers. Part 8A now regulates that procedure. It has application where the conduct of the officer consists of either action or inaction and where it occurs either in the course of official duties or at a time when the officer is not officially on duty (s.121 of the Act). However, Part 8A only applies where the conduct of the officer falls within one of the specific categories set forth in s. 122: if this is not so, any complaint made against a police officer will not be regulated by Part 8A, although the complaint may of course still be considered, and appropriate action taken as the circumstances warrant. The exclusion provided by s.4(3)(h) of the Privacy Act is only concerned with complaints that in fact become regulated by Part 8A of the Police Act 1990.

10 For Part 8A to have application, s. 122 must therefore be satisfied on one ground or another. This section specifically refers to conduct (by an officer of police) that is an offence, is corrupt or is unlawful. It also refers to conduct that, whilst not unlawful, is inter alia, unreasonable, unjust, or oppressive or is conduct that arises from improper motives or arises from a decision that has taken irrelevant matters into consideration. If s.122 is satisfied, an individual may make a complaint about the conduct involved, although this does not limit any other right to make complaint (s.126(1) and (2)). This is the primary matter to determine in order to ascertain whether s.4(3)(h) of the Privacy Act has application to the documents under consideration and, if it does, to what extent.

11 There is no requirement in the legislation that the individual making the complaint must elect, subjectively, to make a complaint under Part 8A. Also, there are no requirements of form, save for those set forth in s. 127 of the Act. Consequently, the better view is that Part 8A will have application to any complaint that objectively satisfies the elements just discussed and there is no need for the maker of the complaint to intentionally make the complaint under Part 8A, nor for the receiver of the complaint to subjectively treat it as a Part 8A matter. The tests therefore are objective in nature.

12 Document 9 (exhibit A2 pages 43 to 46 inclusive) is an investigator’s report into an incident on 09.06.03. The report refers to a complainant whose name has been deleted. Document 10 (exhibit A2, pages 47 to 48 inclusive) is a statement by a person in relation to that incident, the name of the person having also been deleted. Clearly, a person has made complaint about the applicant which has been given formality in the document 10 statement and this has resulted in investigation and report, the latter being document 9. The conduct the subject of the complaint may be properly said to be that the applicant has acted unreasonably or oppressively. The alleged conduct also concerned the inappropriate use of the applicant’s status as a police officer in circumstances where the inference could be drawn that he has acting with an improper motive, namely to force the security guards into subjugation. The Tribunal makes no findings in relation to these allegations, it being sufficient to find that the complaint, whether true or not, falls within Part 8A. The report of course arose out of the complaint. Consequently, both documents come within Part 8A.

13 Document 11 (exhibit A2 pages 49 to 2 inclusive) is a report into an incident occurring on 18.10.03. The document records that a complaint was made by a person whose name has been deleted from the report. The complaint alleges that the applicant acted in an aggressive manner and used offensive language when he spoke with a third party about a driving incident. Whilst the alleged conduct of the applicant would usually be described as unprofessional or offensive, it could also be properly described as unreasonable and oppressive, on the complainant’s version of the events involved. The nature of the complaint therefore suffices to bring Part 8A into play.

14 Document 12 (exhibit A2 pages 53 to 56 inclusive) is an investigation report into an incident occurring on 05.10.03 in which the applicant was involved. Document 13 (exhibit A2 pages 57 to 60 inclusive) is a statement by a witness to that incident. The report refers to a complaint having been made about the applicant’s conduct, the police officers who lodged the complaint being named therein. The main allegation was that the applicant, when asked to leave certain premises, identified himself as being an officer of police when he was not undertaking any official duties at those premises at that time. It is further alleged that he was intoxicated at the time. The secondary allegation is that he spoke disparagingly to other police officers when they sought to question him at the premises. It is clear that the complaint alleges that the applicant behaved with improper motive in that he, it is alleged, endeavoured to use his status as a police officer to avoid having to leave the premises. Such conduct would also amount to unreasonable or oppressive action, as would the way in which he spoke to the other officers. Consequently, the complaint falls within Part 8A and the report in question arose from that complaint. The Tribunal makes no findings as to the truth of the allegations and notes that the applicant denies any improper motive as well as the other allegations.

15 Document 14 (exhibit A2 pages 61 to 65) is a report as to surveillance activities conducted in November 2003 with surveillance notes as an attachment thereto. The surveillance activities followed an Internal Police Complaint initiated by the investigator. The complaint alleged that the applicant was undertaking employment outside the police force at a time when he did not have the requisite approval. Surveillance was conducted and the information obtained was reported. The question here is whether the alleged conduct was such that Part 8A was engaged, given that the criteria as to the nature of the alleged conduct are specifically set forth in Part 8A. In principle, only certain types of conduct will engage Part 8A, as noted above. The respondent’s position is that, as the complaint alleges that the applicant was engaged in secondary employment outside the police force at a time when his previously existing permission to do this had been revoked, the applicant was, it is alleged, acting unlawfully in the sense that he could only lawfully do this if he had permission. The unlawfulness element, the respondent argues, arises by reason of the applicant’s obligations as a member of the police force, the relevant obligation being that he could not properly undertake outside employment without permission. The applicant did not dispute that he was under such an obligation. On the proper construction of the legislation the word unlawful embraces this type of conduct. The complaint therefore concerns alleged conduct which, if true, could amount to unlawful conduct in the sense just described and comes within Part 8A.

16 For completeness, the Tribunal notes that pages 66 to 71 inclusive contain additional documents which the applicant relies upon, but as these are only copies of documents 9 and 10 they do not require separate consideration.

17 For the reasons given the documents in question, prima facie, engage Part 8A and hence the exemption in the Privacy Act under consideration. There is of course no determination by the Tribunal of the truthfulness or otherwise of the several allegations.

18 The applicant however argues that this does not follow for two reasons. The first is that the several documents do not show ex facie that they have been properly classified as either category 1 or category 2 documents. However as noted above the necessary aspects of form are in fact present so as to bring Part 8A into play and such categorisation is not a necessary formal matter for this purpose. Secondly, the applicant argues that the documents do not amount to reviewable complaints. This is a reference to s. 173(1) and (2) of the Police Act 1990, which provide for reconsideration of reviewable action by the Commissioner consequent upon a finding of misconduct. However, these provisions do not come into play when determining whether a complaint falls within Part 8A, this being the initial question which brings the Part into play and which activates the relevant provisions of the Privacy Act. Consequently, the prima facie findings of the Tribunal noted above must prevail so that the information which was disclosed about the applicant was information arising from complaints made under Part 8A of the Police Act 1990 and therefore does not constitute personal information for the purposes of the two Privacy Acts under consideration.

19 The applicant’s motivating concern has been that information concerning investigations into alleged misconduct as a police officer has been supplied to insurers in the context of a worker’s compensation claim when, in his view, the information is not relevant to the claim that he has made. Whilst he may well be correct in this view, this is not an issue that has been raised in these proceedings for the Tribunal’s consideration. The Tribunal makes no determination in this regard as this point may well be an issue that the applicant may wish to raise in another jurisdiction.

20 By reason of the above findings and determinations, the applicant is dismissed. The parties should be commended for the sensible way in which they have both approached and conducted the hearing of these proceedings.