Posted on August 19, 2019 by Elaine Yeo and Megan Hawley

Exceptions to prohibitions on disclosure of personal information- Council’s law enforcement powers

The NSW Civil and Administrative Tribunal has confirmed that it is not a breach of the Privacy and Personal Information Protection Act 1998 (‘PPIP Act‘) to disclose personal information to a local council to enable the council to carry out investigations into land clearing offences.

In DMW and DMX v NSW Rural Fire Service [2019] NSWCATAD 158, an officer from the NSW Rural Fire Service (RFS), forwarded an email from one of the applicants, ‘DMW’, to Hawkesbury City Council because the RFS officer believed that DMW was threatening in the email to clear vegetation illegally. On the following day, the applicants received an unannounced inspection from the Council’s Compliance and Enforcement Officer, and DMW claimed that the email was wrongfully provided to Council as it contained personal information.

It was not in dispute that the email contained personal information, as defined in s4 of the PPIP Act.

Section 18 of the PPIP Act prohibits a public sector agency (such as RFS) from disclosing personal information that it holds unless the disclosure is directly related to the purpose for which the information was collected, the individual concerned was likely to be aware the information was of a type usually disclosed, or there is a serious and imminent threat to life or health which requires the disclosure of the information.

However, the Tribunal accepted the argument in this case that there was no breach of s18 of the PPIP Act because of the exception in s23(5)(a). That exception is if the disclosure is made in connection with proceedings for an offence or for law enforcement purposes.

At the time DMW had not committed any offence and said that there was no intention to commit an offence.

The Tribunal considered that ‘law enforcement purposes‘ include ‘policing’ or ‘police-like functions‘ and ‘have to do….with the operation of the criminal law and the enforcement of criminal offence provisions‘.

The Tribunal agreed that the Council’s law enforcement powers in relation to the unauthorised clearing of vegetation were ‘police-like functions‘ because councils can authorise officers to serve penalty notices for land clearing offences. Whether DMW actually had or intended to commit any offence was irrelevant. However, what was relevant was the intention of the RFS officer who disclosed the personal information. The Tribunal was satisfied that the RFS officer forwarded the email to the Council for the purpose of assisting the Council to undertake an investigation and therefore the disclosure was in connection with law enforcement purposes and the exception applied.

The case gives comfort to agencies and councils that they can disclose personal information to enable councils to carry out investigations into potential breaches of the legislation they enforce, where those breaches involve criminal offences.

However, the purpose of the disclosure is important. Such information cannot be disclosed in reliance on the s23(5)(a) exception if the information is not disclosed for the purpose of the exercise of the investigative functions, but for some other purpose, albeit that the information may be relevant to an investigation.

If you wish to discuss this article please do not hesitate to contact Megan Hawley on 8325 9703 or Elaine Yeo on 8235 9712.