PART VI - PUBLIC INTEREST DETERMINATION No. 4

(PID 4)

In respect of

Application No :	4 (dated 2 August 1990).
Applicant :	4 (dated 2 August 1990).
Nature of the Application:	Disclosure of police reports for the purposes of pursuing insurance claims or civil litigation.
Information Privacy Principle Concerned::	Information Privacy Principle 11
Issued :	29 April 1991
Tabled :	17 June 1991
Effective :	16 October 1991

DETERMINATION

 

Under section 72 of the Privacy Act 1988, I give notice of my determination, as follows:

The Australian Federal Police (the agency) may disclose personal information contained in criminal offence reports and motor vehicle accident reports subject to the following conditions:

Conditions

(1) Information shall only be disclosed to the extent that it is relevant to the resolution of disputes or claims arising from the incidents which are the subject of the reports.

(2) The information may only be disclosed to an individual or organisation directly affected by the incident or responsible for the management or resolution of claims arising from the incident.

(3) Any disclosure shall be conditional, as far as practicable, on an undertaking from the recipient of the information that the information will be handled in a manner consistent with the Information Privacy Principles, and in particular that Information Privacy Principle 11.3 (limiting re?use and re?disclosure) will be observed.

(4) That a record of the disclosure be noted and, where appropriate, the reason for disclosure.

The Privacy Commissioner shall monitor the operation of this determination and notes that if he considers that the determination is not being observed, he may make a further determination revoking or varying this determination.

 

Dated this 29th day of 1991

KEVIN O'CONNOR Privacy Commissioner

REASONS FOR DETERMINATION

 

1. Background

On 2 August 1990 the Australian Federal Police (the agency) sought a public interest determination under section 72 of the Privacy Act. Its application related to its practice of disclosing personal information contained in police reports for the purposes of pursuing insurance claims or instituting civil action.

The agency had, in the past, released police reports relating to motor vehicle accidents, incidents of theft, assault, malicious damage to property and arson to solicitors, insurance companies, the ACT Department of Urban Services and parties directly involved. The release of these reports, made on payment of a fee, had assisted insurance companies in assessing liability for claims. The reports were also used by solicitors to initiate civil compensation proceedings. In the case of the Department of Urban Services the information was used to determine responsibility for damage to street lights.

After the coming into force of the Privacy Act 1988 on 1 January 1989 the agency ceased to undertake this practice because it considered that it may be seen to breach Information Privacy Principle 11.1 of the Privacy Act, which places limits on the disclosure practices of Commonwealth agencies.

In November 1989 the Australian Federal Police introduced a new procedure, developed in light of the Information Privacy Principles. From November 1989 parties involved in motor vehicle accidents, incidents of theft, assault, malicious damage to property and arson have been advised that the information contained in the police report may be released to third parties. In addition to this notification, the agency's practice is to seek consent, wherever possible. The agency's original application for a public interest determination was confined to the disclosure of police reports collected during the period when this practice was not in operation that is, 1 January 1989 to 30 November 1989.

In accordance with section 74 of the Act, I published, on 31 August 1990, a notice in two leading newspapers advising of the application and seeking expressions of interest or submissions from interested parties: see attachment A. In addition, invitations for submissions were mailed to a cross section of potentially interested organisations.

I received, in response to the mailout and notice, five submissions and sixteen acknowledgements from interested organisations: see Attachment B.

Two of the submissions received indicated that there were concerns in relation to the application of the agency. The submissions addressed such issues as the lack of clarity of the application and the desirability of identifying the precise nature of the information to be released and to whom the information would be released.

The third submission was from a state body who had similar experience in its jurisdiction. The submission provided information on the procedures adopted by the concerned State police force in similar circumstances.

The final two submissions supported the application and were from a firm of solicitors and the Law Society of NSW. In addition, there were five supporting submissions attached to the application. They were from the ACT Legal Aid Office; the National Roads and Motorists Authority (NRMA); the Insurance Council of Australia; the Law Society of the ACT; and the Department of Urban Services in the ACT.

Following consultations with the acting head of the agency in October 1990 the agency considered that the notification currently in use may not be detailed enough to satisfy the requirements of Information Privacy Principle 11.1 (a) and has subsequently requested that the determination apply to the disclosure of information contained in all police reports collected since 1 January 1989. I have permitted this widening of the application, having regard to the fact that the practice currently in place may not, on all occasions, be sufficiently specific to inform individuals of the disclosure likely to be made. It is also desirable to place the release of reports on the same legal basis, rather than have one approach governing the pre?1 November 1989 and another to the post?1 November 1989 period.

I issued a draft determination on 5 December 1989 which was circulated to interested parties.

2. Findings

The findings on material questions of fact relating to the present application are as follows:

(i) The agency is established under Commonwealth administrative arrangements.

(ii) The functions allocated to the agency include the function of collecting details in relation to motor vehicle accidents, theft, assault and arson.

(iii) It was the practice of the agency in the past to disclose the information contained in police reports, on the payment of a fee. This practice assisted insurance companies in assessing claims and assisted solicitors in instituting civil compensation proceedings.

(iv) In handling personal information, the agency is required to comply with the Information Privacy Principles set out in section 14 of the Privacy Act 1988. Principle 11.1 limits the disclosure of personal information held by the agency to certain prescribed circumstances. None of these circumstances would appear to apply to the disclosure practice for the period in question.

3. Observations on Submissions

While the agency noted that the practice which it is seeking to reinstate has no value to it in a strict operational sense, it did consider that the practice is of value to the community and is in the public's interest. The information assists individuals in initiating civil litigation and pursuing insurance claims and is seen as a community service adjunct to the policing function.

In order for civil litigation to commence it is necessary that the party wishing to initiate proceedings have details/information on the other party. In many instances, however, it will not be possible for details such as names and addresses to be exchanged, for example, at the scene of motor vehicle accidents when the individuals involved may be injured or in a state of shock. Similarly, when property is removed, stolen or damaged as a result of trespass or burglary an individual may use information contained in police reports to seek to recover goods or to initiate redress for damaged property.

In their submission in support of the agency's application the Law Society of the Australian Capital Territory noted that police reports are used by solicitors to advise clients as to their rights in a civil case arising out of a particular motor vehicle accident. In many cases the availability of the report may well result in no proceedings being instituted thereby saving costs for parties and work for court officials.

The Law Society acknowledged that the information could be obtained in other ways (by subpoena typically after initiating proceedings against the Nominal Defendant). However such alternatives involve considerable cost and inconvenience. The Nominal Defendant alternative is further complicated by the fact that under section 61(4) of the Motor Traffic Act 1936 a claimant must give notice of their intention to claim within three months of the date of the accident. Individuals severely injured in an accident may not be able to lodge a claim until considerable time has elapsed.

The representatives of the insurance industry in their submissions stated that they relied on the information contained in police reports to assess liability for insurance claims. Unless an insurer is aware of the details of the person responsible for a particular accident or incident, the insurer is not able to determine if it is in fact the relevant insurer. In such circumstances a claim will not be progressed until that information is ascertained.

The police motor vehicle accident report also provides insurers with information outlining the circumstances of the accident. This information allows an insurer when dealing with third party claims to determine whether under the insurance policy it has issued it is liable to meet a claim; and if it is liable to meet a claim, whether there is an element of contributory negligence on the part of the claimant. The early resolution of liability, as may be afforded by access to such police reports, allows an insurer to speedily assist the injured person in receiving and paying for adequate treatment and rehabilitation. The alternative of having liability determined in court may take up to ten years.

Other policy holders may also be disadvantaged by the lack of access to police reports in regard to their claims relating to burglary, theft and malicious damage. For example, the victim of a burglary would be required to pay the excess on his/her policy and lose the 'no claim bonus' entitlement unless the party responsible is identified and costs recoverable.

In the ACT it has been common to seek information about the outcome of any criminal proceedings that arise from an incident by requesting the information from the police. When this problem was first brought to my attention (in late 1989, by representations from solicitors and others) I inquired as to why outcome information could not be obtained from court records. I was informed, and these points were reiterated at the statutory conference, that the ACT local court does not consider itself a "court of record" and does not keep a register of the outcome of criminal proceedings available for public inspections.

The ACT Department of Urban Services is involved in the recovery of costs associated with damage to street light columns by motor vehicles. Before recovery action can be initiated, identity of the driver is required. Police accident reports are often able to provide this information. The Department estimates that the inability to receive this information will cost the ACT administration an additional $55 000 per year.

As mentioned earlier, two of the submissions raised several issues of concern which related to the lack of clarity of the application including the desirability of identifying the precise nature of the information to be released and to whom the information would be released to. However, both organisations making the submission, the Australian Privacy Foundation and the Communications Law Centre, acknowledged that there may exist a justification for a favourable determination in the context raised by the applicant. It is the scope and nature of the disclosure that concerned the two organisations.

The concerns have been, I believe, addressed in part by the subsequent clarification provided by the applicant as to the exact types of information proposed to be disclosed. The information permitted to be disclosed has been limited by condition 1 of my determination. In regard to the range of recipients to whom the information may be disclosed, I have sought to restrict the categories of recipients in condition 2 of my determination to those persons with a legitimate community interest in receiving this information.

4. Statutory Conference

A conference pursuant to section 76 of the Act was held on 29 January 1991 and attended by representatives of the Australian Federal Police, the NRMA, the ACT Law Society and the Australian Privacy Foundation. All interested parties, except the Australian Privacy Foundation, supported the draft determination. The Foundation's position was merely that of an observer. However, the Foundation's representative made a useful contribution to the conference; and indicated that it did not oppose a favourable determination subject to the safeguards outlined at the end of the conference by the me. The NRMA and the Law Society however did make submissions regarding the adequacy of the conditions set out in the draft determination.

Condition 1 of the draft determination listed certain items of information that could be released by the agency. This was considered unnecessarily restrictive. It was argued that as additional items other than those listed in the condition are often included in police reports, the draft condition could have the effect of limiting the disclosure of other relevant information.

In relation to draft condition 2 (which sought to limit the disclosure of information on witnesses), it was submitted that such a limitation was unnecessary and that the unavailability of witness information would frustrate and delay legal proceedings. Also, it was further argued that the condition would hamper an insurance company's ability to determine liability or contributory negligence at an early stage, leading to increased costs; cause delays in payment of treatment and rehabilitation costs; and facilitate fraudulent claims.

Draft Condition 3 (which sought to identify those entitled to receive information) was also considered restrictive as the categories listed did not cover all types of people with an interest in the pursuit of civil litigation and insurance claims.

5. Conclusion

Prior to the commencement of the Privacy Act (1 January 1989) it was established practice for the Australian Federal Police to provide copies of their motor vehicle accident reports and criminal offence reports to inquirers with a legitimate interest in their contents, subject to payment of a fee. This is a service routinely provided by police forces in Australia; and has particular benefit for solicitors acting on behalf of clients who wish to take civil action to redress harm; and for insurers seeking to assess liability in relation to claims. It is not clear what statutory or other legal authority the Australian Federal Police had for this practice prior to 1 January 1989. Had there been legal authority for the practice, then the Privacy Act would not have affected the situation. Because, Information Privacy Principle 11, in particular exception (d), authorises the disclosure of personal information where an agency is authorised by law to make such a disclosure.

What the enactment of the Privacy Act appears to have caused is a re?examination of existing disclosure practices, and the Australian Federal Police (possibly out of caution) decided to desist from continuing to make available copies of criminal offence and motor vehicle accident reports. Following criticism of this change in practice a new approach was implemented by the agency whereby notice was given at the time reports were being compiled (i.e. at the scene of the accident or incident) in a form designed to satisfy Information Privacy Principle 2 and, in turn, ensure that any subsequent disclosure to interested inquirers could be justified under Information Privacy Principle 11.1(a).

While this approach provided a basis for reinstatement of the practice of providing reports, it remained the case that if the requirements of Information Privacy Principles 2 and 11 (in combination) were not satisfied in a particular case (e.g. because the officer failed to give the relevant notice or it was insufficiently precise) then the potential (however remote) arose for any subsequent disclosure to be challenged under the Act. For that reason it was felt desirable to address the whole situation (not just the pre?1 November 1989 problem) in the determination.

In my view it is clear that the practice of providing police reports to legitimate inquirers (such as solicitors and insurers) is a well?established one and widely accepted in the community. As explained in submissions at the statutory conference, the practice is of substantial benefit to the community: it enables professional advisers to assess the viability of pursuing civil claims; this can be done at an early stage and expense and inconvenience to clients minimised; it enables victims to identify and locate those who have caused them harm and loss; and, in general, it assists in the more efficient administration of justice.

Information about witnesses usually finds its way into police reports because those witnesses have made themselves known to police out of a sense of public duty. I accept that in these circumstances it is likely that most witnesses would expect that information given to the police and recorded in reports would be likely to find its way to those with an immediate interest in the incident, such as the parties to a motor vehicle accident and their professional advisers. As noted at the statutory conference, there may be circumstances in which police may wish for operational reasons (or witnesses may wish) not to have their identities and information revealed to inquirers. In the determination I have sought to reflect this concern by indicating that the agency retains a discretion not to provide part or whole of a report. This is in accord with usual and past practice; and to some extent is stating the obvious. There was no objection from the interested parties to such a constraint; and it was seen as valuable by the representative of the Australian Privacy Foundation.

For the reasons given, I consider that the practice in issue is one for which there is a public interest in disclosure which outweighs to a substantial degree the public interest in ensuring strict adherence to Information Privacy Principle 11.

LIST OF ATTACHMENTS

 

A: Notice of Application B: Responses to Notice C: Organisations invited to make submissions

Note: These attachments are not being distributed routinely, but are held with the original determination and are available on request from:

Privacy Branch Human Rights and Equal Opportunity Commission GPO Box 5218 SYDNEY NSW 2001 Phone: (02) 229 7600

ATTACHMENT B

 

SUBMISSIONS

(1) Australian Privacy Foundation dated 10 September;

(2) Communications Law Centre dated 12 September;

(3) South Australian Privacy Committee dated 14 September;

(4) Sly and Weigall, Solicitors dated 13 September.

(5) Law Society of NSW dated 27 September.

 

ACKNOWLEDGEMENTS

(1) Reserve Bank of Australia dated 5 September;

(2) Department of Prime Minister and Cabinet dated 6 September;

(3) Minister for Justice, Western Australia dated 6 September;

(4) NSW Privacy Committee dated 6 September;

(5) Roger Clarke dated 11 September;

(6) ACT Government dated 11 September;

(7) South Australian Council for Civil Liberties dated 1 September;

(8) NSW Council for Civil Liberties dated 17 September;

(9) Ministry for Police and Emergency Services, Victoria dated 19 September;

(10) Department of Justice, Tasmania dated 18 September;

(11) Public Service Commission dated 10 September;

(12) Department of Administrative Services dated 24 September;

(13) Northern Territory Department of Law dated 4 October;

(14) Department of Foreign Affairs and Trade dated 19 October;

(15) Queensland Council for Civil Liberties dated 30 October;

(16) Department of the Premier, Economic and Trade Development dated 9 November.

ATTACHMENT C

 

ORGANISATIONS INVITED TO MAKE SUBMISSIONS

Aboriginal and Torres Strait Islander Commission

ACT Government Law Office

ACT Government Administrator, Christmas Island

Attorney?General's Department, South Australia

Attorney?General, Western Australia

Attorney?General's Department, New South Wales

Attorney?General, Victoria

Attorney?General's Department, ACT

Australian Tax Office

Australian War Memorial

Australian Council of Civil Liberties

Australian Medical Association

Australian Privacy Foundation

Australian Computer Society

Australian Bureau of Statistics

Australian Archives

Communications Law Centre

Darwin Prisoners Association

Department of Administrative Services

Department of Industry, Technology and Commerce

Department of Foreign Affairs and Trade

Department of Defence

Department of the Premier, Economic and Trade Development,Queensland

Department of Justice,Tasmania

Department of Immigration,Local Government and Ethnic Affairs

Department of Law,Northern Territory

Department of the Premier and Cabinet,Tasmania

Department of Prime Minister and Cabinet

Department of Industrial Relations

Department of Veterans' Affairs

Law Society of NSW

Law Institute of Victoria

Law Reform Commission,Western Australia

Mental Health Advocacy Service Minister for Justice, Western Australia

Ministry for Police and Emergency Services, Victoria

NSW Privacy Committee

NSW Council for Civil Liberties

NSW Bar Association

Offenders Aid and Rehabilitation Services of South Australia

Outcare

Prices Surveillance Authority

Public Service Commission

Public Interest Advocacy Centre

Public Service Association

Queensland Council for Civil Liberties

Redfern Legal Centre

Reserve Bank of Australia

School of Social Work, University of NSW

South Australian Council for Civil Liberties

State Chamber of Commerce and Industry, Queensland

Tasmanian Council for Civil Liberties

Victorian Association for the Care and Resettlement of Offenders

Victorian Bar Council

Victorian Trades Hall Council

Vocal Incorporated