Commentary
- This decision was based on the preceding legislation to the Privacy and Data Protection Act 2014 (Vic.) (PDP Act), the Information Privacy Act 2000 (Vic.) (IP Act). However, the decision still provides useful guidance on several terms found within the law enforcement exemption in s 15 of the PDP Act, including:
- what constitutes a ‘law enforcement function’;
- what constitutes a ‘community policing function’ of Victoria Police; and
- when an organisation will have ‘reasonable grounds’ to believe non-compliance is necessary.
- While VCAT ultimately accepted that Victoria Police was exempt from the IPPs in this instance because it had reasonable grounds that it was acting for a community policing purpose, the decision also makes comments raising concerns about the practice of releasing criminal’s mug shots to the media. This is because of the harmful effect this may have on an offender’s rehabilitation, the creation of a risk of violence to the offender and their family, and the idea that, in doing so, Victoria Police are punishing an offender over and above a sentence that has been determined by a court.
- There is also commentary about procedural fairness requirements in the FOI Act, particularly in relation to a requirement that Victoria Police should have notified Mr Smith of their decision to disclose his mug shot to a third party in response to an FOI request, which would have afforded him an opportunity to seek an independent review of that decision. However, because the case was a privacy complaint, VCAT was limited in making findings only in relation to provisions in the IP Act.
Facts and decision
- In 2003, Mr Smith was charged with several criminal offences and taken into police custody where his mug shot was taken. He subsequently pleaded guilty and was sentenced to imprisonment.
- A local newspaper made a request for access to the mug shot under the Freedom of Information Act 1982 (Vic.) (FOI Act), and Victoria Police provided access.
- The newspaper published an article about Mr Smith’s crime, which included his name, where he lived at the time he was arrested, and the mug shot.
- Mr Smith made a privacy complaint regarding Victoria Police’s disclosure of his photograph to the newspaper, asserting interference with IPP 2.1, 4.1, 5.1 and 10.1, causing him to suffer harm in the sense that it damaged his prospects of a safe transition back into the community and exposed his family to harm by their association with him.
s 15 – Exemption for law enforcement
Submissions and decision
- Victoria Police contended that the disclosure of the mug shot to the newspaper was exempt from compliance with the IPPs because it was necessary to carry out its law enforcement or community policing functions under s 13 of the IP Act (substantially similar to s 15 of the PDP Act). VCAT ultimately agreed.
Whether Victoria Police was carrying out a ‘law enforcement function’?
- Victoria Police contended that its law enforcement function was defined by the Victoria Police Mission Statement as contained in their Code of Conduct being to “provide a safe, secure and orderly society by serving the community and law.”
- The Office of Victorian Information Commissioner (OVIC) contended that Victoria Police’s law enforcement function was limited to investigating and prosecuting individuals. The disclosure exceeded this function because it augmented Mr Smith’s sentence, and this (fixing appropriate sentences) was a function of a court or tribunal, not a law enforcement agency.
- VCAT held that the term ‘law enforcement function’ is a “fundamentally descriptive term which will change from time to time.” It rejected Victoria Police’s submissions about what a ‘law enforcement function’ is on the basis that it was too general and described all of its functions, not just its law enforcement functions. VCAT preferred the definition of ‘law enforcement function’ as it was expressed in s 3 of the Health Records Act 2000 (Vic.) (HR Act) given that the HR Act dealt with similar issues to the IP Act.
- However, this was ultimately not decisive, as VCAT was persuaded that the disclosure of the mug shot was authorised for a ‘community policing function’ – see below.
Whether Victoria Police was carrying out a ‘community policing function’?
- Victoria Police contended that the term ‘community policing function’ encompassed a consultative relationship between the police and the rest of the community. This involved Victoria Police putting information into the community so that the community could act on it, as Victoria Police could not police the community alone.
- OVIC contended that the term ‘community policing function’ was limited to functions related to the nature of licensing investigations, locating missing persons, providing necessary responses in public emergencies and disaster situations, and locating next of kin if required. This was based on the examples set out in the Explanatory Memorandum to the IP Act.
- Ultimately, VCAT agreed with Victoria Police’s position that the disclosure of the mugshot to the newspaper was consistent with its community policing function. It is clear that VCAT rejected OVIC’s position on the basis that it was too narrow, as the Explanatory Memorandum did not seek to provide an exclusive list of examples.
Whether Victoria Police had ‘reasonable grounds’ to believe non-compliance was necessary?
- VCAT adopted the interpretation of ‘reasonable grounds’ from the Australian Federal Court in Department of Industrial Relations v Burchill [1991] FCA 616 to mean to “be ‘reasonable’, it is requisite only that they not be fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous.”
- Applying this definition, VCAT held that although Victoria Police had not considered the IP Act when disclosing the mug shot, the considerations it did have with respect to the FOI Act were relevant to it formulating reasonable grounds. These included:
- the public was entitled to know the identity of Mr Smith as he had been convicted of a serious offence;
- the disclosure would assist in publicising the workings of the criminal justice system and would indicate that justice was done;
- the disclosure would provide a means of enabling members of the public to feel safer; and
- the disclosure would provide a deterrent effect.
- Accordingly, VCAT held that Victoria Police was exempt from compliance with the IPPs that Mr Smith alleged they had interfered with.