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- Unreported Judgment
Eaves v Commissioner of Police QCAT 180
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Eaves v Commissioner of Police  QCAT 180
RENEE TERRI EAVES
THE COMMISSIONER OF POLICE, QUEENSLAND POLICE SERVICE
Occupational regulation matters
19 June 2018
9 March 2018
POLICE – RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES – OTHER MATTERS – where applicant claimed police officers had improperly accessed personal information in their control – where applicant sought copies of reports of access – whether relevant to proceeding – whether public interest immunity applied – where confidential disclosure to applicant’s counsel ordered
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS - where applicant claimed police officers had improperly accessed personal information in their control – where applicant sought copies of reports of access – whether relevant to proceeding – whether public interest immunity applied – where confidential disclosure to applicant’s counsel ordered
Information Privacy Act 2009 (Qld), s 27, s 88, s 176, s 178, Schedule 3, IPP 4
Police Powers and Responsibilities Act 2000 (Qld), s 88, s 803
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 62, s 164
Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582
Australian Securities Commission v Zarro and Others (No 2) (1992) 34 FCR 427
Sankey v Whitlam (1978) 142 CLR 1
Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311
S Keim SC, with D Marckwald, instructed by Alex Mackay & Co
M Copley QC, with E Hoiberg, instructed by Crown Law
REASONS FOR DECISION
- These reasons relate to an application by Ms Eaves for directions for production of an unredacted copy of a Queensland Police Records and Information Exchange (‘QPRIME’) activity report and associated materials.
- QPRIME is a database maintained by the Queensland Police Service (‘QPS’) as its primary system for the storage and management of information obtained by the QPS, including personal identifying information and records of interactions with police or the criminal justice system.
- The application is made in the context of a complaint by Ms Eaves, to be heard and decided by the Tribunal, that there has been unauthorised access and use of personal information relating to Ms Eaves on QPRIME, such that the QPS has breached its obligation to comply with Information Privacy Principles (‘IPP’) under the Information Privacy Act 2009 (Qld) (‘IPA’).
- The Commissioner opposes the making of the directions on the basis that the material is irrelevant to the issues in the proceeding and that in any case the material is protected by public interest privilege.
- The application raises issues about the application of the IPA, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’).
- Ms Eaves has obtained a public profile as a former model who has challenged actions of the QPS and assisted others in doing so. Her complaint has been the subject of media coverage.
- Ms Eaves obtained a redacted copy of a QPRIME activity report which indicated that her records had been accessed over 1400 times. Although later evidence indicates that this may have been overstated, there were, at the least, over 200 officers and staff who had accessed her records.
- Ms Eaves is alarmed by the number of occasions on which her records have been accessed. As she has not been charged with any offences, other than traffic offences, she considers that her records must have been accessed many times for purposes that were not official, permitted purposes.
- In her complaint before the Tribunal, Ms Eaves seeks a variety of relief pursuant to s 178 of the IPA relating to the alleged failure to comply with IPP 4, which, as set out below, required the QPS to ensure that her personal information in the QPS’s control was protected against unauthorised access. She asserts that her public profile made her particularly vulnerable to such access occurring.
- Ms Eaves’ submissions foreshadow a submission on the hearing of the complaint that the number of times her records have been accessed supports an inference that much of the access was without a proper purpose and that this demonstrates the ineffectiveness of QPS’s safeguards against the improper use of information recorded on QPRIME.
- The Crime and Corruption Commission referred a complaint by Ms Eaves about the access to QPRIME to the QPS for investigation. The QPS undertook an investigation and maintains that it has been able to establish that only two of the accesses to Ms Eaves’ QPRIME records were not for official purposes.
- The copy of the QPRIME activity report provided to Ms Eaves was heavily redacted. The names, ranks and stations of the officers who accessed information about Ms Eaves, and the computers from which they did so, were redacted, along with the information regarding their activities recorded by the officers.
- What is left is effectively the time and date of the officer’s activity and the User ID of the officer. There is no information regarding the nature of the activity recorded, either by way of specific details or the category of activity. Ms Eaves seeks an unredacted copy of the QPRIME activity report.
- In carrying out its investigation, the QPS undertook an audit of relevant access to QPRIME in relation to Ms Eaves and sought information from officers who accessed Ms Eaves’ QPRIME records where those persons remained in the employ of the QPS. Ms Eaves also seeks copies of documents relating to the audit and the inquiries made by the QPS for the purposes of the QPS investigation and the responses.
The legal framework
- The relevant parts of the information privacy regime under the IPA may be summarised as follows:
- (a)An agency such as the QPS must comply with IPPs set out in Schedule 3: s 27(1);
- (b)In particular, the agency must not do or fail to do an act or engage in a practice if that would be inconsistent with a requirement of an IPP: s 27(2);
- (c)An act or practice for this purpose includes an act or practice relating to accessing, management, use or disclosure of personal information: s 27(3);
- (d)IPP 4 requires an agency having control of a document containing personal information to ensure that the document is protected against unauthorised access and use. The protection must include security safeguards adequate to provide the level of protection that can reasonably be expected to be provided; and
- (e)A complaint about a breach of IPPs may be referred to the Tribunal, which must exercise its original jurisdiction to hear and decide the complaint: s 176.
- For completeness, and since it was referenced in QPS’s submissions, I note that s 88 provides for an agency, when discharging its duty under the IPA to give access to a document, to delete irrelevant information. Relevance is only meaningful in its context. Section 88 applies in the context of an access application under the IPA. That a decision was made regarding relevance in that context cannot determine whether the material would be relevant to Ms Eaves’ complaint.
- Section 62 of the QCAT relevantly provides:
- (1)The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
. . .
- (3)Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or to provide information to [the tribunal or a party].
- (4)A party must comply with a direction given under this section within [specified times].
- (5)However, subsection (4) does not apply to a document or thing, a part of a document or thing, or information for which there is a valid claim to privilege from disclosure.
. . .
- There are also requirements to:
- (a)‘act fairly and according to the substantial merits of the case’ (s 28(2)); and
- (b)‘ensure, as far as practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts’ (s 28(3)(e)).
Public interest immunity and the PPRA
- Ordinarily, consideration of a claim for public interest immunity under common law principles involves the balancing of competing public interests. One such public interest relates to the central importance to our conception of the administration of justice of documents relevant to issues arising in litigation not being withheld and the related need to maintain public confidence in the administration of justice. Another is the public interest in ensuring that harm is not done to the state by the disclosure of certain documents.
- In respect of the latter consideration, it has been said in the context of records maintained by the then National Companies and Securities Commission:
. . . documents of a confidential nature recording information received . . . relating to possible offences or irregularities, or recording information received in the investigation of possible offences or irregularities, including the identity of informants . . . are in the public interest prima facie immune from compulsory disclosure, on the basis that such disclosure would be likely to seriously impede the ability of the Commission to fulfil its function of effectively investigating possible offences . . . and in appropriate cases instituting and prosecuting criminal . . . proceedings in the public interest.
- Such comments apply with at least equal force to relevant QPS documents. However, the fundamental principle at common law is that ‘documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary’.
- In Queensland a statutory rule applies in respect of disclosure by police officers. Section 803 of the PPRA relevantly provides:
- (1)In a proceeding, a police officer can not be required to disclose information mentioned in subsection (2), unless the court is satisfied disclosure of the information is necessary—
- (a)for the fair trial of the defendant; or
- (b)to find out whether the scope of a law enforcement investigation has exceeded the limits imposed by law; or
- (c)in the public interest.
- (2)The information is information that could, if disclosed, reasonably be expected—
- (a)to prejudice the investigation of a contravention or possible contravention of the law; or
- (b)to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; or
- (c)to endanger a person’s life or physical safety; or
- (d)to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; or
- (e)to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety; or
- (f)to facilitate a person’s escape from lawful custody.
. . .
- Assuming for the moment that some of the material sought falls within s 803(2), how is s 803(1) to be applied in relation to public interest considerations? Is a balancing exercise still the appropriate course? My attention was not drawn to any authority in which the application of s 803(1) has been explored.
- On its face, s 803(1) requires the court (here the Tribunal) to determine whether it is satisfied that disclosure is ‘necessary . . . in the public interest’. The difficulty with that requirement is that, as already observed, there may, and commonly will, be competing public interests in favour of and against disclosure. The legislature must be taken to have been aware that the provision would arise for consideration in a context that gives rise to those competing considerations.
- It is also to be noted that the focus of s 803(1) is upon whether disclosure is necessary in the public interest. This is the converse of the common law principle already noted that the immunity applies only to the extent necessary in the public interest. Does this mean there is practical difference between applying the common law principles and applying s 803(1)? That the bar for ordering disclosure is higher than under the common law principles?
- On one view, it might be said that the legislature must be assumed to have intended, by adopting the converse of the approach to common law public interest immunity, to put a stronger onus on protection of relevant documents from disclosure. For instance, it might be argued that the requirement to be satisfied that disclosure is ‘necessary’ in the public interest requires more than a mere balance in favour of disclosure and that the balance in favour of disclosure must be sufficiently compelling for the Tribunal to be satisfied that disclosure is necessary in the public interest.
- On the other hand, perhaps too much should not be made of the difference. The practical application of the common law principles is that disclosure is refused if, in the balancing of the public interests, it is the public interest in protection from disclosure that predominates. In those circumstances, and to that extent, the public interest is said to require protection from disclosure.
- Similarly, under s 803(1), disclosure may be said to be ‘necessary’ where the public interest in disclosure predominates. In that regard, it may be significant that the reference in s 803(1) to disclosure being ‘necessary’ is part of a drafting device that picks up not only public interest considerations but also whether disclosure is ‘necessary’ for other purposes.
- On balance, I prefer the view that s 803(1) requires a balancing exercise to determine whether the public interest in disclosure predominates such that the court may be satisfied that disclosure is required in the public interest. Where there are competing interests at play, the determination required by s 803(1) cannot be made in a vacuum; the competing interests must necessarily be balanced and the public interest in disclosure must predominate before it could be considered that disclosure is necessary in the public interest.
- Once it is concluded that the public interest in disclosure predominates, it is difficult to envisage a circumstance in which a court would not be satisfied that disclosure is necessary in the public interest. Nevertheless, the Tribunal must ask itself whether it is satisfied that disclosure is necessary in the public interest.
- A particular issue may arise where the public interest favouring disclosure relates to overall public confidence in the justice system, while the public interest against disclosure relates to revealing police methodologies or sources. Refusing disclosure may have only an incremental effect upon public confidence whereas disclosing methodologies may have immediate practical consequences and significant ongoing systemic implications. The context in which the disclosure is sought will also be relevant to the public interest, a factor that, as will appear, in my view assumes some significance in the current case.
The material sought
- Following an oral hearing, I directed by consent that the QPS produce to the Tribunal the documents over which the QPS claims privilege, to be viewed only by me for the purpose of determining the claim for privilege.
- The material so produced comprised some nine volumes, as follows:
- (a)Volume 1: Copy of redacted QPRIME activity report previously provided – included for convenience;
- (b)Volume 2: (a) Unredacted QPRIME activity report (480 pages);
- (c)Volumes 3-6: (b) Excel spreadsheet prepared by Detective Acting Senior Sergeant Christy Linda Schmidt in the course of the audit mentioned below;
- (d)Volume 7: (c) QPRIME reports prepared by officers, containing more details relating to the matters mentioned in the activity report; and
- (e)Volumes 8-9: (e) and (f) Emails from and to DSS Schmidt, revealing the responses to formal questions about their reasons for accessing QPRIME.
- The redacted QPRIME activity report that had been provided to Ms Eaves is so extensively redacted that it is, other than in one respect, essentially meaningless. That one respect is that it identifies the date and time that the various access occurred and allows the reader to identify, by reference to User IDs, whether two or more accesses were carried out by the same or different officers.
- An affidavit of DSS Schmidt deposes that the 480-page activity report contained incorrect information relating to, for example, data relating to Ms Eaves’ entire unit complex; motor vehicle registration details at a time when she was not (I infer, no longer) the registered owner of the vehicle; and ‘False/Positive information’.
- Nevertheless, after this review, according to the affidavit, some 215 officers and staff members had accessed Ms Eaves’ information.
- Mr Copley, who appeared for the QPS, argued that disclosure of the material should not be ordered because it is not relevant to the real issue in the proceeding, which is not whether there were unauthorised accesses to information concerning Ms Eaves but whether the QPS had appropriate procedures in place to ensure compliance with IPP 4.
- There is no issue between the parties, Mr Copley argued, in relation to whether unauthorised access occurred, as the QPS admits that there were two such incidents. The extent of the unauthorised access is ‘neither here nor there’.
- I do not accept that the number of incidents of unauthorised access is necessarily irrelevant. If the material revealed a history of such incidents, that would, in my view, potentially be relevant to the effectiveness of the QPS systems. In any case, the obligation under IPP 4 to ensure that personal information is not accessed is, in its terms, absolute. While it may be that the obligation would be read down or impliedly qualified, it is clear that the requirement for adequate safeguards under IPP 4 is inclusive not exhaustive.
- In that regard, DSS Schmidt’s affidavit indicates that, of the 215 officers who accessed Ms Eaves’ records, only 111 were able to be contacted. Of those, access by 49 was found to be justified, access by 2 officers was found not to be authorised or justified, and 60 ‘had either no or limited recollection due to the passage of time’. Without reflecting on the veracity of the inquiries, these numbers indicate that whether access by many of the officers was justified has not been verified.
- Similar considerations apply in respect of the audit materials and associated materials.
- Mr Copley also submitted that the names, ranks and stations of the officers who accessed information about Ms Eaves, and the computers from which they did so, are also irrelevant to the issues in the complaint hearing. I accept that the names and ranks of those officers may not be relevant to the issues in the proceedings, but it is impossible to be sure. If allowed to view the activity report, Ms Eaves may wish to test the reasons stated by one or more officers for accessing her records.
- The locations from which the access occurred may be relevant to the probability that the access was authorised. Access from, say, Cairns, may be less likely to be authorised in relation to information concerning a Gold Coast resident than access from a Gold Coast station.
- I therefore reject the submission that all of the material sought is irrelevant to the issues before the Tribunal.
- The QPS’s submissions assert that disclosure of officers’ personal information and their reasons for accessing QPRIME information about Ms Eaves could be reasonably expected to prejudice the investigation of a possible contravention of the law; the effectiveness of a method or procedure for such investigations; and the maintenance and enforcement of a method or procedure for protecting public safety. Accordingly, the documents are said to fall within s 803(2) and therefore potentially protected by s 803(1).
- These submissions are supported by an affidavit of Chief Superintendent Glenn Horton, who is Operations Commander of the Internal Investigations Group, Ethical Standards Command.
- CS Horton deposes in a generalised way that disclosure of the redacted information and reports could lead to sensitive information being revealed and outlines risks said to be associated with release of information of the kind contained in the activity report and associated documents. These include that this type of information:
- (a)‘can be used as a counter-intelligence measure’;
- (b)‘would permit persons to undertake specific steps to inhibit the effectiveness of QPS methodologies’; and
- (c)would ‘permit persons to identify which areas of the QPS are targeting them’.
- CS Horton goes on to note that release of the information would include details specific to Ms Eaves and her associates and ‘specific details of policing activities being undertaken or proposed by the relevant officers to investigate or deal with’ possible contraventions of the law.
- Finally, CS Horton notes that, in his experience:
…the provision of information to persons suspected of engaging in offending behaviour often results in those persons taking active steps to thwart or frustrate police investigations.
- It is apparent that the claim for public interest immunity is based at least in part on concerns about the release of QPRIME information generally. Although no allegation of criminal behaviour by Ms Eaves is made, the affidavit also suggests that there are some reasons specific to Ms Eaves or her associates that touch upon the public interest in protection from disclosure.
- I accept that release of information about investigations and inquiries by police may prejudice specific investigations and the effectiveness of QPS operations if focus areas or investigation methods are revealed and that this risk weighs heavily against disclosure.
- However, there are also powerful reasons why Ms Eaves should have an opportunity to see the entries relating to her as a matter of fairness in the presentation of her case and as already noted such considerations are matters of public interest in the effectiveness of and confidence in the justice system. It is clear that a large number of accesses occurred in relation to a citizen with no criminal history other than relatively minor traffic matters, and it is conceded that two accesses were improper and that the appropriateness of many others was not able to be verified.
- The public interest in maintaining public confidence in the administration of justice is more acute where, as in this case, details of the case, raising concerns about activities of police, are in the public arena. A public perception that Ms Eaves’ opportunity for a fair hearing is being thwarted by being denied the opportunity to put forward potentially relevant evidence for consideration by the Tribunal, especially in circumstances where it is not denied that improper access has been taken and that there is a large number of other occasions on which access occurred, has the potential to adversely impact on public confidence in the police service and fairness in litigation.
- On the other hand, it is self-evident that the kinds of risks outlined by CS Horton may arise out of indiscriminate release of QPRIME information. The difficulty with CS Horton’s affidavit, though, is that it is relatively general in nature and necessarily does not link the range of identified risks to the specific occasions on which access occurred or, where they are available, the stated reasons for such access.
- In those circumstances, weighing up the competing public interests, I am not satisfied that the public interest in protection from disclosure is made out in respect of each record of access. In other words, I do not accept that the application should be refused on the basis of a blanket public interest immunity claim. Nor I am prepared to order release of the entirety of the material in the face of the risks outlined by CS Horton.
A practical approach to resolution of the matter
- Overlaying the considerations outlined above is the need to ensure that the matter proceeds as speedily as fair consideration of the issues permits, having regard to the regrettable delay that has already occurred in ruling on the application. In that regard, I am conscious of two considerations.
- First, the material sought is at the heart of Ms Eaves’ case. A good understanding of the nature of the information relating to the accesses will be highly relevant to decisions Ms Eaves will need to make as to the efficient conduct of the complaint.
- Secondly, it is apparent that the application raises a matter of considerable significance to the QPS, which has indicated that it may wish to have a ruling that allowed disclosure tested authoritatively on appeal. A ruling which facilitates resolution of the issues, even though it does not deal finally with all of the entries, would allow the QPS, if it were so minded, to apply for leave to appeal.
- It is not uncommon for a court to examine a particular document or documents to form a view regarding relevance and whether such a risk arises as to warrant protection from disclosure in the public interest. In the course of the hearing, I indicated that might be an appropriate course in this case. Counsel then conferred, leading to the consent order mentioned.
- With hindsight, and the benefit of examining the materials, it is apparent that may be a course more effectively undertaken in relation to a single or small number of documents the significance of which is apparent on their face. In a matter such as this, where privilege is effectively claimed in respect of a very large number of entries containing in some cases minimal detail and context, and by reference to a range of concerns, and where the material produced to me comprised some eight large folders of information which, consistent with the consent order, is unaccompanied by any explanation of the basis for claiming immunity in respect of each entry, it is less so.
- Having come to the view that neither blanket disclosure nor blanket immunity from disclosure is appropriate, it is not feasible to rule on each and every item in a timely way consistent with the Tribunal’s statutory duties. Nor is it satisfactory for the Tribunal to be left to speculate as to which of the various listed public interest concerns or s 803(2) categories are said to apply to each of the large number of entries in respect of which disclosure is sought and resisted.
- However, it is clear to me that a large proportion of the material would, on close examination, be found to be of no assistance to Ms Eaves because the access can clearly be seen to be for official purposes. In other cases, Ms Eaves’ representatives may or may not wish to test the stated explanations for access. How that could be done may be challenging, but that is a matter for Ms Eaves’ representatives. On the other hand, particularly in respect of entries relating to activities that occurred some 10 years ago, the public interest in protection from disclosure is not immediately obvious.
- What is needed, in the particular circumstances of this case, is a manageable way of considering the relevance of each item of information and the competing public interests.
- In that regard, I have considered whether to direct the QPS to provide a document that identifies the specific basis on which privilege is claimed for each entry, perhaps grouped in categories. Close attention to each entry may have lead the QPS to narrow its claim for privilege by, for example, reducing the degree of redaction. However, that would involve a very large amount of potentially unnecessary work and still leave a time-consuming task for the Tribunal.
- I have also considered whether to order release of the materials to Ms Eaves’ counsel only at this stage. I am satisfied that the public interest in protection from disclosure of this limited nature is outweighed by the public interest in allowing the material to be viewed on behalf of Ms Eaves, such that this level of disclosure is necessary in the public interest. It is quite possible that counsel for both parties might then be able to confer in confidence and agree upon a compromise approach, which might, for example, involve Ms Eaves abandoning her application for disclosure of much of the material and a narrowing down of the information in respect of which privilege is claimed. The parties could then, if necessary, return for a ruling on any remaining items in dispute.
- However, the information revealed may put counsel for Ms Eaves in a difficult position in continuing to act for Ms Eaves or raise concerns on the part of the QPS in that regard. I have decided it would not be appropriate to make such an order in relation to Ms Eaves’ current representatives without the parties having an opportunity to consider the particular arrangements.
- On balance, as noted, I have concluded that I should refuse both Ms Eaves’ application for disclosure of the entirety of the documents and the QPS’s claim for public interest immunity in respect of the entirety of the documents.
- I have concluded that the most effective and efficient way to resolve the issue of disclosure is to allow a member of the bar acting for Ms Eaves to view the material on a confidential basis. Whether that member is one of Ms Eaves’ current counsel or another to be engaged for this purpose, I will, unless the QPS objects to this course, leave to Ms Eaves to determine. My expectation is that counsel would then confer with a view to agreeing on the material to be disclosed to Ms Eaves or her broader legal team or, if that cannot be achieved, agreeing on the material for which disclosure will continue to be sought by Ms Eaves and resisted by the QPS.
- I will give the parties’ representatives an opportunity to confer regarding the details of the arrangements for this to occur.
- Finally, I note that the QPS’s submissions stated that the Crime and Corruption Commission (CCC) retained a monitoring role over the QPS investigation and:
…is likely to have an interest and a right to be heard on this Application on the question whether disclosure of those documents might prejudice any investigation or reveal investigative techniques or to be otherwise contrary to the public interest.
Accordingly, I will direct the QPS to provide a copy of these reasons to the CCC.
For convenience, I use the expressions public interest privilege and public interest immunity broadly to include the protection from disclosure provided for under s 803 of the Police Powers and Responsibilities Act 2000 (Qld).
To avoid tedious repetition, I will use the word ‘officers’ to refer to both officers and staff members.
Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582.
Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311, 312, cited with approval in Australian Securities Commission v Zarro and Others (No 2) (1992) 34 FCR 427, 431.
Sankey v Whitlam (1978) 142 CLR 1, 41 (Gibbs ACJ).
Section 164(1), QCAT Act: provides that ‘The tribunal is a court of record.’
The bracketed lower case letters correspond to categories of documents identified in Ms Eaves’ reply submissions dated 16 February 2018. The absence of category (d) is explained by the QPS advice that there are no documents in that category.
- Published Case Name:
Renee Terri Eaves v Commissioner of Police, Queensland Police Service
- Shortened Case Name:
Eaves v Commissioner of Police
 QCAT 180
19 Jun 2018