Recent Cases: Victoria
Brooks v Victoria Police [2018] VCAT 1833
A search warrant was issued by Victoria Police (“Police”) to search the applicant’s house. Following the search the applicant was charged with trafficking and growing marijuana at the premises. The applicant claimed that the police had no reasonable grounds to suspect he was engaged in criminal activity and that the warrant was invalid.
After 13 years, the applicant requested a copy of the affidavit used to secure the warrant in an effort to prove it had been tampered with. As there was a significant period between the grant of the warrant and the applicant’s request, the Police could not locate the original copy of the affidavit. Therefore, the applicant was provided with an unsworn and unsigned draft copy with all substantive content redacted.
The applicant sought review contending that the redactions should be removed.
HELD:
The Tribunal affirmed the decision of the Police and held the public interest override did not apply.
Age of the document: s 31(1)(d)
The applicant contended that disclosure would not be unreasonable given the document is 13 years old. He stated that disclosure would not impair the Department’s ability to obtain similar information in future. The police argued that regardless of the age, affidavits are kept confidential as they form part of the investigatory methodology and techniques still applied today. The Police contended disclosure would be detrimental to the use of the material in the future.
Exemptions: ss 33(1), 35(1)(b)
The applicant stated that the required degree of confidence that disclosure would be unreasonable was unlikely in the relevant documents. After identifying that there were numerous references to individual persons in the affidavit, the Tribunal was satisfied disclosure would raise concerns for the safety of those persons.
The Tribunal was satisfied that the affidavit was communicated in confidence. The release of such information would impair the Police’s ability to obtain similar information in future.
Public interest: s 50(4)
The Tribunal was satisfied that the use of the affidavit was for private rather than for public benefit. The information did warrant a high threshold of public interest due its sensitivity and for those reasons The Tribunal did not allow the release of the affidavit.
Zeqaj v Victoria Police [2018] VCAT 1733
Victoria Police communicated with the Australian Tax Office and the complainant’s relatives (“third parties”) disclosing certain information about him in connection with a police investigation. The complainant lodged a complaint against Victoria Police and argued that it had interfered with his privacy and breached the PDP Act and a number of IPPs.
The complainant claimed that the information disclosed by Victoria Police was inaccurate and untrue and should have been withheld. The applicant was particularly concerned about being labeled as a “known criminal identity” in communication sent to third parties in relation to the revocation of a firearms licence.
Victoria Police denied that it breached the PDP Act and argued that disclosure of the information in argument was for law enforcement and community policing functions and, therefore, they were exempt from IPP duties.
The complainant claimed the maximum level of compensation available under the Privacy Act the sum of $100,000.00.
HELD:
The Tribunal found Victoria Police breached IPP 3.1 and held that the complainant be awarded $1,000. Victoria Police was ordered to amend the records referring to the complainant. However, it dismissed the other complaints made by the complainant.
Law enforcement: s 15 PDP Act
Victoria Police claimed that through s 15 it was not required to comply with Victoria Police; IPP 2.1. Section 15 contended that its purpose is to serve the community and promote a safe, secure and orderly society. Therefore, there is no need to adhere to the IPP’s because of the s 15 exception. The Tribunal held that for s 15 to apply there must be evidence of a belief of the kind referred to having been formed. No evidence was found in this instance.
IPP 2.1
Victoria Police is subject to s 20 of the PDP Act and must ensure that it does not engage in a practice that contravenes an IPP. The complainant complained that the third parties had breached both IPP’s 2.1 and 3.1.
An organisation must take reasonable steps to make sure that the personal information it collects, uses, or discloses is accurate, complete and up to date.
Victoria Police disclosed the personal information for a primary purpose. A breach of IPP 2.1 is not proven merely because the information is not true or is opinion only.
IPP 3.1
Victoria Police showed it took reasonable steps to make sure the personal information it collects/uses or discloses is accurate, complete and up to date. Victoria Police submitted its Manual was evidence it met IPP 3.1. The Tribunal held that the obligation applies to individual pieces of personal information. The evidence did not show sufficient enquires for Victoria Police to make the statements made in the disclosure. Therefore, the Fire Arms Act use was a breach of IPP 3.1. Arguably, this is a breach of s 13(b) of the Charter but no evidence was led.
Compensation: s 77(1)(b)
When assessing whether to make an award, the Tribunal must look to the effect of the conduct.
The scope of compensation was limited strictly to the fact that the applicant had been labeled as a “known criminal identity” in communication sent to his family members in relation to a Firearms Act license revocation. This was despite the fact that the applicant has no recorded convictions. The tribunal considered the actual impact of the disclosure and found that as the disclosure was made to a close family member, that despite his claims to the contrary the applicant had not suffered humiliation, and the release had no impact on his employment prospects the level of compensation available would be significantly limited.
Where a large amount of compensation is claimed, one would expect to see some medical evidence in support. $1,000 was awarded for hurt feelings following the breach of IPP 3.1.