AMENDMENT APPLICATIONS UNDER THE FREEDOM OF INFORMATION ACT AND THE NSW POLICE SERVICE
1. Under s.39 of the Freedom of Information Act (1989) a citizen may apply for the amendment of a record kept by an "agency" if three conditions are met. These conditions are:
a) that the record MUST contain information concerning a person's personal affairs.
b) That the information MUST be available for use by the agency in connection with its administrative functions.
c) The applicant MUST demonstrate that the information contained in the record is incomplete, incorrect, out of date or misleading.
2. Amendment under the Freedom of Information Act means that the information can be deleted from the record or a notation can be added to the record to show the applicants version of events.
3. In 2001 a citizen make application to the FOI Unit of the NSW Police Service to amend various documents that contained personal information on him that were contained on the COPS
(Computerized Operational Policing System) database.
This is a computerized database that contains information on thousands of NSW citizens and which is available to all 16,000 employees of the NSW Police Service through Police computer terminals, including mobile terminals in Police Motor Vehicles and Motor Bikes.
4. This information was contained in documents called "Incident Reports". These are documents which are created OR FABRICATED by Police following an encounter with a citizen. Police enter up brief details of the incident, the name of the Person of Interest (POI) and the result of their investigation. The incident report may include a brief summary of the persons
"Characteristics" (based on the individual's officer's perspectives) and can include warnings,
for example, vexatious
complainant; known to assault Police, etc. The incident reports also include summaries of information that has been provided
by Police informants about citizens, this information may be
provided to the Police anonymously.
For example, there is a section on the NSW Police Web Site for citizens to make anonymous allegations of criminal activity against other citizens.
This information may be recorded in summary form on the COPS database for Police to view. It also includes information of charges where a person has been brought before a Court of Law.
This information will include acquittals as well as convictions The incident reports also divide citizens into categories according to any contact that citizen has had with the Police.
For example, if a citizen has made a complaint against Police to the NSW Ombudsman and the Ombudsman has found that the complaint cannot be substantiated against Police,
the heading "vexatious complainant" appears. If a citizen was accused of a crime but was acquitted by the Court the citizen will be branded according to the allegation, e.g. thief, pedophile, armed holdup, fraudster, etc.
5. The NSW Police Service claim that citizens cannot seek amendment of "Incident Reports" kept on COPS. The Police say that the information contained in the incident reports is not used in connection with its administrative function and hence the Police are entitled to refuse an application for amendment under the Freedom of Information Act.
The Police have submitted that even if the documents are incorrect or inaccurate, the nature of the documents are such that this is of no consequence as in this case the Police are not making any decisions regarding this applicant based on the accuracy of the documents and information held on him. If this is true, then why do the Police wish to retain this information?
The Police say they are not making any decisions based on the accuracy of the information. No mention is made of the possible future use of such information.
6. The citizens of NSW through the Freedom of Information Act have an interest in ensuring that information held by agencies on them is accurate, not misleading, up to date and complete. The right to amend personal records ensures that when someone's personal information is read by a third party, the information does not mislead, misinform or misrepresent that person's private
affairs.
The Police say that the Freedom of Information Act is only about citizens seeking amendment of information that concerns decisions that are being made on those citizens. This implies that the Police believe that the amendment provisions of the Freedom of Information Act only concern the present.
If decisions are not being made by the Police on the applicant for amendment, they say that the Freedom of Information Act does not apply.
This is a completely perverse view of the purpose of the amendment provisions of the Freedom of Information Act.
There is nothing in the Act that said that amendment can only occur in situations in which decisions are being made by an agency on an applicant.
Clearly, information kept on citizens by Government agencies may never be used in making a decision on that citizen. However, citizens have a legal right to ensure that any information, regardless of its actual use, is accurate, not misleading, complete and up to date. No one has a crystal ball to determine if and when such information will be used. The purpose of the FOI Act is clear, to ensure that information kept on citizen by Government is accurate.
7. The Police say that the affecting of a person's rights vis-à-vis the agency is not the purpose of recording and maintaining the information.
They say the purpose is to ensure the enforcement of the law by facilitating the prevention and detection of crime. How can Police ensure the facilitation, prevention and detection of crime based on information that may be inaccurate, misleading, incomplete and out of date.?
How may bunged and failed operations by Police in the past were due to the recording of such unreliable information? How many more NSW Citizens will be charged, subjected to searches, be refused co-operation as a result of this type of unreliable information?
8. The Police say that information provided to them and recorded on COPS is gathered from a variety of sources, including informants who are not in their employ. The Police agree that as such the information may be inaccurate, incorrect, out of date or misleading. The Police say that the public has an interest in both receiving this information and in its recording.
The Police claim that the public interest requires that this type of intelligence information should be maintained in as accurate a form as it was received. The Police say that information received from members of the public is crucial in the prevention and detection of crime. The Police claim that steps are taken to minimize the inaccurate or incorrect nature of the information but do not describe those alleged steps.
A reasonable person could conclude that no such steps are taken.
9. The Police say that Incident Reports are documents that relate to law enforcement and operational matters are can be clearly distinguished from their administrative functions.
The Police say that the law enforcement material is fundamentally different in nature from the material held by the Police which relates to employee management and financial issues.
The Police say that "operational" can be used in the sense of the operation of the administrative functions of the service and these can be clearly distinguished from the law enforcement material which is utilized, they say, for a peculiar public interest purpose. The Police submit that the incident reports are used for the prevention and detection of crime and that as such are used in a completely different manner to material that relates to the day-to-day administrative operation of the service.
They submit that the Incident Reports were brought into existence for law enforcement / intelligence purposes only and not brought into existence for the administrative purpose of the service.
10 The Police say that the information is not created and maintained for the purpose of dealing solely with the individual citizen who name appears on the information. The Police say that the information is created and maintained for the purpose of maintaining law enforcement generally. The public interest they say is as much affected in this instance as is the applicant for amendment.
Thus if the Police receive information that you have contacts with criminals, you will be branded as a possible suspect and associate of those criminals. Any attempts you may make to show that this "information" is in-accurate will fall on deaf ears. To the NSW Police Service any information is good information and must never be amended.
Consequences to the Citizens of NSW
1. The creation of totally false profiles of citizens by Police based on anonymous information. For example, a citizen can be branded a pedophile, a murderer, a rapist, a thief, a con man, etc, based solely on anonymous information supplied about that citizen to the Police.
The Police are not concerned as to the accuracy or truth of that information. Even if you can show that the information is false, it will not be amended.
2. The creation of a totally false set of characteristics based on:
a) encounters by citizens with Police;
b) a citizen is acquitted of an offence in a court of law. If you are found not guilty in a Court, the Police will disregard the finding of the court and will give you a category on the database according to the crime you were acquitted. Police do not refer to an acquittal as an "acquittal", but as a "failed conviction". Clearly, this use of this language infers that the NSW Police Service believe that all persons they charge are guilty; the finding of the Court is irrelevant. As we all know "Police are never wrong"!!!!!
c) a citizen makes a complaint to the Ombudsman about Police which is not substantiated; that citizen may be reported on COPS as a "vexatious complainant".
3. Given the recent finding of His Honour Justice Woods in the Police Royal Commission in relation to the evidence of "systematic corruption" throughout the NSW Police Service and the recent findings of the present Commissioner of the Police Integrity Commission into Police Corruption, the dangers to citizens is very evident. Despite findings of corruption the present Labour Government and its lapdog, the highly paid Commissioner of Police allows all members of the Service access to a database that contains inaccurate and misleading information about citizens.
4. It is not difficult to appreciate the danger to citizens of a Police Service who keeps a permanent record of such unreliable information. One truly has to ask the question why the Police wish to maintain records of this type of information. History tells us of the use that such unreliable information was put by Adolf Hitler in Germany in the 1930's and J. Edgar Hoover, Head of the FBI in the 1950's in the USA. Why does Peter Ryan and Bob Carr want to create these types of intelligence files on the citizens of NSW? Why do Police want intelligence information that is misleading and inaccurate? In the 1930's Hitler encouraged German citizens to "dobb in" persons of Jewish descent, gypsies, homosexuals and persons who were considered by the Nazis as "politically undesirable." Thousands of persons were transported to concentration camps and later murdered. This occurred in the days before the invention of computers.
5. Thus next time you are stopped by Police and they make inquiries about you through COPS you had better hope that no-one has written anonymous letters about you making serious criminal
allegations. You had also better hope that the Police Officers whom you have contact with reports the truth of the encounter between you and them.
If in doubt, apply to Inspector Koopman of the FOI Unit of the NSW Police Service now. Who knows what the Police hold on YOU. But don't hold your breadth that the Police will grant you
amendment of any false and misleading information that you may find they hold on you. You will be told that the FOI Act does not grant you the right to amend. Don't be fooled by Inspector Koopman and his colleagues, use your external appeal rights and take the matter before the Administrative Decisions Tribunal.
Its cheap (free if unemployed or on a pension), impartial and
you don't need a lawyer to present your case.
Write to your LOCAL MEMBER and ask him the question: Why does the NSW Police Service refuse to amend information contained on citizens and found on COPS that is misleading, inaccurate, out of date and incomplete? You might like to point out that such a practice is contrary to the International Convention on Civil and Political Rights which the Federal Government of Australia is a signatory and on which the Commonwealth Privacy Act (1988) is based.
You might also like to ask your member why the NSW Police Service is essentially exempt from the provisions of the Privacy and Personal Information Protection Act (1998)(NSW). You may also like to ask why a NSW Parliamentary Committee recommended in 2001 that NSW should NOT have a Bill of Rights,
Particularly there were 80 submissions altogether. 21 of those submissions were against
the idea of a Bill of Rights in NSW. 5 were neutral and 54 were supportive.
Therefore 68% of submissions supported the idea of a Bill of Rights for NSW.
Yet the Parliamentary Committee found that it was not in the public interest
that NSW should have a Bill of Rights.
Why is it that the Carr Government have extended Police Power more than any under Government in the history of NSW, particularly after formal findings of corruption?
At the next State Election, remember you have the right to register your feelings about these Policies.
~~ More Coming soon on this subject~~
  UPDATE ~~ SEPTEMBER 16. 2002
Did you hear about the latest amendment to the Crimes Act? It is now an
offence to "harass or intimidate" a Police Officer with a 5 year max
sentence. The question is "what constitutes harassment or intimidation".
One member of Parliament (Mr. Peter Breen - independent and a lawyer) said
that asking an officer for his/her name and station could constitute
harassment. The Police Minister Costa replied that this would never
happen - but time will tell.
The POLICE STATE is now well and truly upon us.
The Administrative Decisions Tribunal
decided against Police and that citizens can now apply to amend their
intelligence reports if they can prove that they are inaccurate, misleading,
out of date or incomplete. The Police have appealed the decision.
"The Appeals Panel of the Administrative Decisions Tribunal
have referred the matter to the SUPREME COURT of NSW". A date has not yet been set.
U P D A T E Received: Tuesday 28 October 2003~~
The NSW Police appealed the decision of the President
of the Administrative Decisions Tribunal His Honour Judge K O'Connor
to the Appeal Panel of the Administrative Decisions Tribunal.
The Appeal Panel without entering into a hearing of the matter
referred a question of law to the
Supreme Court of NSW pursuant to s.118(2)
of the Administrative Decisions Tribunal Act 1997.
The matter came before His Honour Acting Justice Cripps on
the 9 October 2003 in the NSW Supreme Court.
On the 23 October 2003 His Honour found that
the learned President was correct in his interpretation of the words
"administrative function" and that as a result he answered in the affirmative
the question of law that had been put to him, that is,
"Is the information contained in the documents avaialble for use by
the New South Wales Police Service 'in connection with its
administrative functions' within the meaning of that phrase in s.39(b) of the Freedom of Information ACT 1989.'
His Honour stated that
"Moreover I agree with His Honour Judge O'Connor that it would be an odd result if s.39 (b)
related only to personal records generated and held in connection with the
"internal" administration of an agency such that employees would have
the right to see and amend their personal records but members of the public
who are the subject of records held about them would not."
The upshot of this ruling is that the NSW Supreme Court has confirmed
the decision of the Administrative Decisions Tribunal
that citizens of NSW may make application to NSW Police to have
their intelligence Reports amended if they can show that
those intelligence reports are inaccurate, misleading, out of date or incomplete.
However, such application assumes that NSW Police
will give citizens access to their intelligence reports.
It is the OPINION of this author that as a result of
this application NSW Police will think twice about giving citizens ACCESS
to their intelligence reports to ensure against an amendment application.
Moreover, even if NSW Police give citizens access to their
intelligence reports there is no guarantee that they or
the Tribunal will agree that those reports are inaccurate, misleading,
incomplete or out of date.
Without a doubt the decision is an important one for the citizens of NSW
and a milestone in the judical history of Freedom of Information
~~MORE TO COME ~~
|
SUNDAY 3 February 2002~~
