Citation: R v Ritson; R v Stacey [2010] NSWDC 160
Court: District Court of New South Wales
Date: 30 July 2010
Judge(s): Blackmore SC DCJ
Background
Two police officers (the appellants) accessed a police computer database known as iCOPS to retrieve information about a civilian, Ms Fell. The information retrieved included Ms Fell's gender, recorded as male. The officers printed a document from that system and showed it to a man, Mr Jacobson, who was in a relationship with Ms Fell. The Crown alleged the officers did this to humiliate Jacobson by confronting him with the fact that he was sleeping with a person of male gender.
Both officers were convicted in the Local Court of an offence under section 62(1) of the Privacy and Personal Information Protection Act 1998 (PIPA), which prohibits a public official from intentionally disclosing personal information accessed through their official functions, where that disclosure is made outside the lawful exercise of those functions. They appealed their convictions to the District Court.
The central question on appeal was whether, at its highest, the Crown's case disclosed a prima facie case against the appellants. Three issues were raised: whether the information was "personal information" within the Act's definition, whether there had been a "disclosure", and whether the conduct fell outside the appellants' lawful official functions.
Legal Issues
- Whether Ms Fell's gender constituted "personal information" under section 4(2) of PIPA, or whether it fell within the exception in section 4(3)(b) for information "contained in a publicly available publication"
- Whether showing the iCOPS printout to Jacobson amounted to a "disclosure" of information, where Jacobson had previously been told the same fact orally
- Whether the appellants' conduct in showing the document to Jacobson was made "otherwise than in connection with the lawful exercise of their official functions"
Decision
On the "publicly available publication" exception: The court accepted that Ms Fell had revealed her gender in open court on at least one occasion, and that her birth certificate recorded her as male. The court found that court records (whether electronic or in transcript form) "contained" that information within the meaning of section 4(3)(b). The core interpretive question was whether such records constituted a "publicly available publication." After detailed analysis, the court concluded they did, meaning the information fell within the statutory exception and was not "personal information" as defined.
On "disclosure": The court considered whether a person can "disclose" information that the recipient already knows. Acknowledging authority suggesting you cannot disclose a fact of which the recipient is already aware, the court nonetheless held that merely being told something orally is distinct from having it confirmed as established fact. On the Crown's own case, the purpose of showing the iCOPS form was to settle the matter as fact in Jacobson's mind, not merely to repeat what had been said before. The court found that showing the form constituted a disclosure.
On lawful functions: The court rejected the argument that showing the printout to Jacobson could have been within the appellants' lawful official functions. Even if accessing the computer for the information might have been within those functions, showing a printout to a civilian for the purpose of humiliation was not. The court found this ground did not support a prima facie case finding in favour of the appellants.
Overall outcome: Because the information did not constitute "personal information" as defined in the Act (by operation of the publicly available publication exception), a necessary element of the offence was not established. The court found no prima facie case on either appeal and quashed the convictions.
Orders Made
- Appeal upheld in each case
- Conviction quashed in each case
- Orders of the magistrate revoked in each case
Key Takeaways
- The District Court held that information revealed in open court proceedings is "contained in a publicly available publication" within the meaning of section 4(3)(b) of PIPA, meaning it falls outside the definition of "personal information" for the purposes of the Act.
- A conviction under section 62(1) of PIPA requires proof that the information disclosed was "personal information" as defined. Where an exception applies, a necessary element of the offence fails and no prima facie case can be established.
- Under PIPA's definition, "personal information" has a broad reach, potentially covering characteristics such as gender, hair colour, ethnicity, and other personal attributes accessed through official functions.
- Showing a document to a recipient who has previously been told its contents orally can still constitute a "disclosure" where the purpose is to confirm the information as established fact rather than merely to repeat it.
- Conduct by public officials in humiliating a civilian using information obtained from official systems does not fall within the "lawful exercise of official functions," even where the initial access to the information may have been lawful.
Legislation and Cases Referenced
Legislation:
- Privacy and Personal Information Protection Act 1998 (NSW), ss 4, 62
- Births, Deaths and Marriages Registration Act 1995 (NSW)
- Interpretation Act 1987 (NSW), s 34
- Local Court Rules 2009
- Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed)
Cases:
- ASIC v Rich [2001] 51 NSWLR 643
- Foster v Federal Commissioner of Taxation (1951) 82 CLR 606
- John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512
- NW v NSW Fire Brigades [2005] NSW ADT 73
- PC v University of New South Wales (2007) NSW ADT 86
- R v Davis (1995) 57 FCR 512
- R v Elomar & Ors [No.3] [2008] NSWSC 1442
- Seven Network v News Limited (2005) FCA 1934
- University of New South Wales v PC (GD) [2008] NSW ADTAP 26
- WL v Randwick City Council (GD) [2007] NSW ADTAP 58