Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: ACP v Commissioner of Police, NSW Police Force [2011] NSWADT 249
• Hearing dates: On the papers
• Decision date: 02 November 2011
• Before: P Molony, Judicial Member

Decision

The application is dismissed.

• Catchwords: Privacy and Personal Information Protection - personal information - deletion - retention - administrative or educative function
• Legislation Cited: Crimes Act 1900; Law Enforcement (Powers and Responsibilities) Act 2002; Privacy and Personal Information Protection Act 1998
• Cases Cited: Commissioner of Police, New South Wales v YK (GD) [2008] NSWADTAP 78; GA v Commissioner of Police, NSW Police [2005] NSWADT 121; HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214; McPhail v R (1988) 36 A Crim R 390; R v SA, DD and ES [2011] NSWCCA 60; WL v Randwick City Council [2007] NSWADTAP 58
• Category: Principal judgment
• Parties: ACP (Applicant); Commissioner of Police, NSW Police Force (Respondent)
• Representation: Redfern Legal Centre (Applicant); Norton Rose Australia (Respondent); Privacy Commissioner
• File Number(s): 113116

REasons for decision

Introduction

1 On 24 February 2011 ACP's solicitor wrote to the Commissioner of Police requesting that a photograph of ACP, taken by Police on 13 December 2006, when she was charged with a number of offences, be destroyed. Those charges had been dismissed in the Local Court on 29 October 2007. The request for the destruction or deletion of ACP's photographs from Police records was made under s 15 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act).

2 Section 15 of the PPIP Act provides:

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a) is accurate, and

(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

(2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

(3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.

(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998 .

(5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with.

(6) In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff.

3 Personal information is defined in the PPIPA. Section 4 relevantly provides:

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) ...

4 The definition of personal information in s 4(1) is a wide one. It is not confined to information about an individual's personal affairs, but is a 'broad, unrestricted' definition: WL v Randwick City Council [2007] NSWADTAP 58 at [20]. Due to the beneficial nature of the PPIPA, exclusions from the definition are to be construed narrowly, while the definition itself is to be construed widely and beneficially: WL v Randwick City Council at [22]. In this case there is no dispute that the photographs of ACP held by the Commissioner contain her personal information within the meaning of the definition of personal information in s 4 of the Act:

5 By a letter dated 16 March 2011 from the Criminal Records Section the Commissioner advised that, "section 137 of the Law Enforcement (powers and Responsibilities) Act 2002 does not permit the destruction of charge photographs."

6 On 16 May 2011 ACP applied to the Tribunal to review the conduct of the Commissioner in refusing to delete and retaining her charge photograph under the PPIP Act.

7 At a planning meeting held on 7 June 2011 the parties agreed to:

• Provide the Tribunal with a statement of agreed facts.
• Make submissions outlining their respective positions and contentions based on those agreed facts.
• The Tribunal then determining the issues on the papers.

Agreed Facts

8 ACP and the Commissioner have agreed on the following facts -

1. On 13 December 2006, the Respondent charged the Applicant with eight counts of common assault.

2. On 13 December 2006, the Respondent collected the Applicant's fingerprints pursuant to s.133 of the Law Enforcement (Powers and Responsibilities) Act 2002.

3. On 13 December 2006, the Respondent took photographs of the Applicant pursuant to s.133 of the Law Enforcement (Powers and Responsibilities) Act 2002.

4. On 29 October 2007, Magistrate Reiss of the Local Court of NSW dismissed eight charges of common assault against the Applicant.

5. On 8 January 2008, the Applicant requested that the Respondent remove her photograph and fingerprints from her file.

6. On 9 September 2010, the Respondent destroyed the fingerprints collected from the Applicant on 13 December 2006, pursuant to s.137A of the Law Enforcement (Powers and Responsibilities) Act 2002.

7. On 27 October 2010, the Respondent advised the Applicant, by way of letter, of the destruction of the fingerprints and the refusal to destroy the photographs.

8. On 1 February 2011, the Applicant requested the Respondent state the purpose for which the photographs continued to be held by the Respondent.

9. On 2 February 2011, the Respondent replied to the Applicant, stating that the Law Enforcement (Powers and Responsibilities) Act 2002 does not provide for the destruction of photographs.

10. On 24 February 2011, the Applicant wrote to the Respondent's Criminal Records Section requesting destruction of the photographs, pursuant to s.15 of the Privacy and Personal Information Protection Act 1998 (by consent this is agreed to be so).

11. The letter of 24 February 2011 is an application for an internal review, within the meaning of s.53 of the Privacy and Personal Information Protection Act 1998 (by consent this is agreed to be so).

12. On 16 March 2011, the Respondent replied to the Applicant, stating that the Law Enforcement (Powers and Responsibilities) Act 2002 does not include a power to destroy photographs.

13. The Respondent currently holds the photographs of the Applicant, taken by the Respondent on 13 December 2006, in both physical and digital formats.

Issues for determination

9 An analysis of the submissions reveals that there are three issues in dispute. They are:

• Whether on a proper analysis ACP is, in the circumstances, entitled to have her charge photographs deleted under s 15 of PPIP Act, or whether the Commissioner is entitled to retain them?
• Whether the Commissioner is exempted from compliance with the information protection principle in s 15 by s 27 of the PPIP Act?
• Whether ACP is precluded from seeking the deletion of her photographs under the terms of a deed of release she entered into with the Commissioner on ?

10 Each, if determined adversely to ACP, will result in her application being unsuccessful.

11 The second issue, whether the Commissioner is exempted from compliance with the information protection principle in s 15 by s 27 of the PPIP Act, goes to a fundamental issue concerning the application of the PPIP Act in the circumstances. If the Commissioner is correct and the NSW Police Force is not required to comply with s 15 in the circumstances, then the Tribunal has no jurisdiction to review the conduct in issue.

12 As a consequence I will deal with that issue first.

The jurisdiction issue

13 Section 27 relevantly provides -

(1) Despite any other provision of this Act ... the NSW Police Force ... are not required to comply with the information protection principles.

(2) However, the information protection principles do apply to ... the NSW Police Force ... in connection with the exercise of their administrative and educative functions.

14 The Commissioner relies on s 27 as exempting it form compliance with the information protection principles, including that found in s 15 of the PPIP Act. ACP takes issue with this arguing that the retention of her photograph is in connection with an administrative function of the NSW Police Force. As a result she argues that s 15 applies with respect to her photograph.

15 Police took both the charge photograph and ACP's fingerprints under s 133 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). It provides -

133 Power to take identification particulars

(1) A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offence.

(2) If the person is over the age of 14 years, the particulars may include the person's photograph, finger-prints and palm-prints.

(3) This section does not authorise a police officer to take from any person, or to require any person to provide, any sample of the person's hair, blood, urine, saliva or other body tissue or body fluid.

(4) Subsection (3) does not affect a police officer's power to take any such sample, or to require the provision of any such sample, for the purposes of, and in accordance with the requirements of, any other Act or law.

Note: See, for example, the powers conferred by the Crimes (Forensic Procedures) Act 2000.

16 Section 133 is found in Division 1 (Taking of identification particulars from persons in custody) of Part 10 (Other powers relating to persons in custody and other offenders) of the LEPRA. That division also contains a provision that expressly provides for the destruction, on request, of finger-prints or palm prints of persons charged with offences that are found to be not proven - s 137A. ACP made such an application and her finger-prints were destroyed. There is no provision concerning the destruction of photographs.

17 Other provisions of the LEPRA are concerned with the regulation of issues such as police powers of entry (Part 2), powers to require individuals to disclose their identity (Part 3), powers of search and seizure with (Part 5) without warrant (Part 4), emergency powers (Part 6), powers of arrest (Part 7), the use of in-car police video equipment (Part 8), investigation and questioning (Part 9), drug detection powers (Part 11), powers relating to vehicles and traffic (Part 12), the use of dogs to detect firearms and explosives (Part 13). powers to give directions (Part 14), powers relating to the detention of intoxicated persons (Part 16), powers relating to fortified premises (Part 16A), with respect to property in custody (Part 17) and to the use of force (Part 18).

18 Section 6 of the LEPRA is concerned with inconsistent provisions in other legislation. It provides that -

Inconsistency

(1) This section applies to a provision of another Act or regulation that confers functions on a police officer or other person (other than a provision of an Act or regulation referred to in section 5 (1)).

(2) To the extent of any inconsistency, this Act prevails over an Act or regulation to which this section applies.

(3) A provision of an Act enacted after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of, a provision of this Act.

(4) Subsection (3) does not affect the interpretation of a provision of an Act so far as that Act directly amends or repeals a provision of this Act or expressly provides for that Act to have effect despite a specified provision, or despite any provision, of this Act.

19 The Commissioner argued that the taking of ACP's photograph under s 133 of the LEPRA was related to a core function of the Police Force, and not to its educative or administrative functions. As a consequence, it was submitted that the NSW Police Force was not required to comply with the information protection principle in s 15 by virtue of the operation of s 27 of the PPIP Act.

20 On the contrary, ACP submitted that the taking of charge photographs was an administrative function of the Police Force. ACP relied on the decision of the Court of Criminal Appeal in McPhail v R (1988) 36 A Crim R 390, BC8801208 concerning s.353A(3) of the Crimes Act 1900 (the predecessor of s 133 of the LEPRA). That section provided -

"(3) When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where the person is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including, where the person is of or above the age of 14 years, the person's photograph and finger-prints and palm-prints."

21 ACP submitted that -

The clear purpose of s.353A(3) was "for the identification of the accused in court in whatever circumstances that may arise". Identification powers are necessitated by legal proceedings and their primary purpose is to satisfy the court that the person charged is the same person present in the court. In at least that sense, it can be said the power to take identifying particulars exists to avoid administrative errors. This supports the conclusion that it is an administrative practice.

22 However, a reading of the decision of Lee CJ at CL, with whom Hunt and Campbell JJ agreed, demonstrates that the Court of Criminal Appeal considered the purpose of s 353A(3) of the Crimes Act 1900 to be much wider than that pressed by ACP. At 398 Lee CJ said -

The section in defining the power of the officer to take finger prints etc, uses the expression "all such particulars as may be deemed necessary for the identification of such person" and it is plain that this gives an officer a very wide discretion as to when particulars of identification can be required. The power of the police officer under the section is not limited to cases where he might suspect that identification will be in dispute at the trial but is available in every case where it is considered by him to be necessary for the identification of the accused in court in whatever circumstances that may arise. Nor are the police restricted to using photographs taken of a person in custody after arrest only for the purpose of identifying him at the trial of the offence for which he has been arrested. In Duffield v Police (No 2) [1971] NZLR 710 at 712 Haslam J delivering the judgment of the Court said: "It would be an unduly narrow approach to confine the operation of this enabling section to instances where, as the prosecution's case stood at the moment when the particulars were demanded, the identity of the offender was still at large in respect of the offence for which he had been arrested. The procedure envisaged by s57(1) would usually be adopted at an early stage of the police inquiry immediately after arrest, and before the person in custody had been brought before a Court and remanded. At that point of time police officers would be unable to forecast with certainty what particulars might ultimately be needed on the day of trial to identify the offender. In addition, this section must be considered in relation to the general function of the police force in its broader aspects. If the offender were to disappear during a remand after the granting of bail, or to escape from lawful custody, his identification, wherever he might be, would arise on the execution of a warrant issued for his apprehension, and particulars relating to his identity would be needed in that event to pursue inquiries amongst persons outside the force. Again in the instant case, the transfer, illness, or even death of one of the policemen who at the moment of his apprehension had personal knowledge of the appellant, might well have caused difficulty in proof of his participation at the scene of the trespass. There could even be cases where precision in taking particulars at the outset could serve to exonerate an innocent suspect of similar personal characteristics."

It is no secret that police forces throughout the world have, since the establishment of the modern police force, compiled extensive records of persons taken into custody in respect of offences in regard to finger prints, photographs and other particulars. Recently, blood, hair and semen samples have become a feature of identification of persons charged with offences.

23 That the power granted to Police to take photographs, under s 133 of the LEPRA, for the identification of person in custody is a wide one, like that under s 353A(3) of the Crimes Act 1900 , was confirmed by the Court of Criminal Appeal in R v SA [2011] NSWCCA 60.

24 In HW v Commissioner of Police, New South Wales Police Service and Anor [2003] NSWADT 214 the President considered the operation of s 27 of the PPIP Act. He said -

27 ... However in s 27 the Parliament has taken a compartmentalised approach to the functions of the law enforcement agencies mentioned. The division, as I see it, is as between their core responsibilities and those responsibilities which are not part of their core responsibilities. In particular the meaning of the word `administrative' is to be read down so as not to embrace those core responsibilities. Similarly `educative' responsibilities, which might on one view simply be a component of `administrative' activity are to seen as separate from administrative responsibilities and again not forming part of the core responsibilities.

28 In my view the activities of a police officer in supporting a prosecution, at least where he or she is asked to exercise independent discretion and judgment in performing a task, are activities that form part of the core responsibilities of the Police Service. The fundamental responsibility of the Police Service is the investigation of crime. While the Police Service's responsibility for investigation is usually at an end by the time a case has gone to the District Court for trial, there may be a continuing need for some activity of that kind. In this instance the prosecution team called for a further narrow work of an investigative kind to be done. The means to be used was a subpoena for documents. This in my opinion was work of a investigative nature (though not connected with the crime itself) and related to the Police Service's core responsibilities.

29 It was not `administrative' in the sense in which I consider this term is used in this Act. In order for the primary provision, s 27(1), to be given effect, the term can not be used to refer to the entirety of the administrative activity of the Police Service, which includes the investigation of crime. Read in context, I am satisfied that it is intended to have a narrower compass going to those aspects of the operation of the agency that, as I see it, do not directly involve the carrying out of the core responsibilities. As I see it, `administrative' when used in contradistinction to s 27(1) and alongside the term `educative' seeks to refer to those activities of the Police Service that have to do with providing administrative support for the conduct of its core responsibilities.

30 So, for example, corporate services areas performing functions such as personnel, budget and information technology involve the performance of `administrative' functions. There may be areas of the Police Service where the characterisation of the activity in terms of core/administrative/educative may vary depending on context that has given rise to the conduct in issue. (The handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime, while in other instances they are done administratively, for example for background checks on prospective employees. The exception in s 27(2) may also cover licensing responsibilities vested in the Commissioner, such as for firearms licensing and security industry licensing. It is not necessary to pursue these questions any further here.)

31 As to the term `educative functions' it seeks, as I see it, to refer to the work that the Police Service does in connection with community and school education programs, as well as in relation to its internal education and training programs. Section 27(2) makes the IPPs applicable to the way in which personal information is used in these contexts.

25 In GA v Commissioner of Police, NSW Police [2005] NSWADT 121 the Deputy President found that records of personal information in the COPS database was for purposes associated with the core Police activity of the prevention and detection of crime.

26 The Appeal Panel in Commissioner of Police, New South Wales v YK (GD) [2008] NSWADTAP 78 set out the relevant approach to the s.27 exemption -

20 In our opinion, section 27(1) gives a blanket exclusion from the application of the Act to the named agencies in respect of all of their activities, subject only to the qualification set out in s 27(2). Therefore the starting point is that all functions of the Police Force have the benefit of the s 27(1) exclusion. It is not necessary to refer to the Police Act list of functions. The 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. In our view, the way 'administrative services' is depicted in para [30] of the President's reasons in HW , especially sentence one, captures the meaning intended for this term in sub-section (2).

27 The nature of the police power under s 133 of the LEPRA, the decided cases as to the nature and purpose of that power, and the fact that the power is found in the LEPRA, all point to it attaching to the core responsibilities of the NSW Police Force, rather than to its administrative or educative functions. As a consequence s 27 of the PPIP Act operates so that the NSW Police Force is not required to comply with the information protection principles when taking photographs of a person in lawful custody under s 133 of the LEPRA. I also agree with the submission of the Privacy Commissioner that the retention of the photographs does not change the nature of the function for which they are held to an administrative of educative one.

28 It follows that there is no inconsistency between the provision of the LEPRA and the PPIP Act.

29 It should be noted that in her submissions ACP made a series of assertions in relation to the past administrative practice of the NSW Police, in destroying photographs of persons charged but not convicted. There was no evidence led or agreed facts in this regard. Assuming that ACP is correct about this, the fact that Parliament, in enacting LEPRA, did not make provision for the destruction of photographs (as it did for finger and palm-prints) does not mean that the gap -if there is one- can be filled by the PPIP Act. Section 27 of the PPIP Act grants the NSW Police Force, and the other agencies mentioned in that section, immunity from the information protection principles, save for their administrative and educative functions.

30 As a result of the conclusion I have reached ACP's must be dismissed. There is no need to consider the other arguments canvassed by the parties.

Decision last updated: 02 November 2011