PART VI - PUBLIC INTEREST DETERMINATION No. 5

(PID 5)

In respect of

Application No :	5 (dated 9 October 1990)
Applicant :	The Australian Federal Police
Nature of the Application:	Disclosure of personal information contained in homicide files in the ACT to the Australian Institute of Criminology for research purposes.
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, subject to the conditions set out below, disclose personal information relating to homicides in the ACT, to the Australian Institute of Criminology (AIC) to enable the AIC through its Homicide Monitoring Centre to carry out research under the national homicide monitoring program.

 

Conditions

Disclosure shall be made subject to a written agreement between the agency and Australian Institute of Criminology specifying:

(1) That the information being disclosed will only be used by the Australian Institute of Criminology for the purposes of the national homicide monitoring program.

(2) That the information to be disclosed will only relate to witnesses, suspects and offenders.

(3) That the names of witnesses, suspects and offenders will not be recorded by the Australian Institute of Criminology.

(4) That access to relevant information shall be provided on agency premises, under agency supervision.

(5) That the staff member of the Australian Institute of Criminology responsible for inspecting the information held by the agency:

(i) shall have substantial prior experience in criminological research involving access to sensitive data; and (ii) be personally authorised to undertake the research by the Director of the Institute.

(6) That the results of the research will be published in aggregrate form to prevent the identification of individuals or individual cases.

 

Dated this 29th day of April 1991

KEVIN 0'CONNOR Privacy Commissioner

 

REASONS FOR DETERMINATION

 

1. Background

The Australian Federal Police (the agency) in an application dated 9 October 1990, has sought a public interest determination to allow it to engage in a practice which, in its view, would or might otherwise infringe the Act.

The proposed practice is, essentially, to make certain personal information from police homicide files available to the National Homicide Centre within the Australian Institute of Criminology (AIC) for use by the Centre in research into the causes of, and circumstances surrounding, homicide.

The application advised that the Centre is to be established as a result of agreement between all jurisdictions in Australia, in line with a resolution of the Australian Police Ministers Council made in March 1990. The Police Ministers Council endorsed the proposed research program of the Centre and agreed that an officer of the Institute should have access to relevant documents within each police force in the course of regular site visits.

The agency considers that this proposal may breach the Privacy Act. Information Privacy Principle 11 of the Act governs the circumstances under which agencies may disclose personal information. None of the exceptions to this principle would appear to apply to this proposal.

In its application the agency sought a determination to allow it to disclose:

• the characteristics of the particular incident, for example: number of suspects/offenders/victims; location; method of killing; principal motivation; investigation status; other offences committed during the incident.
• the characteristics of persons involved in the incident, for example: sex; date of birth; employment status; appearance; languages spoken; criminal record; evidence of mental disorder/addiction and relationship with suspect/offender/victim.
• case precis, that is, a narrative including details of events leading up to the incident, circmstances prevailing at the time of the incident, events subsequent to the incident and any other relevant features.

In accordance with section 74 of the Act, I published, on 23 October 1990, a notice in two national 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 two submissions and seven acknowledgements from interested organisations: see attachment B.

 

2. Findings

The findings on material questions of fact relating to the 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 information in the course of investigating crimes. (iii) 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 apply to the disclosure practice proposed and the agency might be in breach of Principle 11 if it made such disclosures.

 

3. Concerns raised by Submissions in Relation to the Application

As noted earlier, the application attracted two submissions, from the Australian Privacy Foundation (APF) and the Law Society of New South Wales.

(i) Need

A concern raised by both the Australian Privacy Foundation and Law Society was that the agency had failed to provide sufficient evidence regarding the need for the disclosed information to be in an identified form. In that regard the agency did not itself offer a detailed case but rather relied on the fact that a national inter-governmental body, the Australian Police Ministers Council had approved the proposed activity after receiving a submission from the Federal Government and the AIC.

(ii) Identity of Witnesses and Suspects

The Law Society felt that the disclosure of the personal information of a witness might put at risk the safety of the individual. In the case of suspects, the Law Society expressed concern that the fact that a person had been a suspect ought to be accorded the highest security and not disclosed. In regard to these areas of concern, discussions between my officers and the AIC have clarified the situation regarding the recording of names. The names of witnesses, offenders and suspects are not intended to be recorded by the AIC. The names of victims only will be recorded, to prevent double counting and to ensure all cases are included. The information identifying victims will be kept separately from other case details and access to it will be restricted.

Moreover, the AIC as a Commonwealth agency must adhere to the requirements of IPP4 which places an obligation on it to take such security safeguards as are reasonable in the circumstances to prevent the loss, unauthorised access, use, modification or disclosure of personal information.

(iii) Incidental Matter

Though not strictly relevant to this application, the APF argued that as the AIC is a Commonwealth agency, the AIC should be applying for a determination in relation to IPP 1, to enable it to collect data in personally identifiable form. The APF submitted that the AIC should also be making an application for a public interest determination.

I do not consider that to be necessary, given that "criminological research" (the relevant function conferred on the AIC by 5.6 (a) of the Criminology Research Act 1971), is an activity which can at least at times involve collecting data in a personally-identified form (eg surveys, review of administrative records).

Obviously any collection activities by the AIC, (whether from Federal or State record sources) must be undertaken in comformity with Information Privacy Principles 1 - 3.

 

4. Draft Determination

A draft determination dated 5 December 1990, was signed by me permitting the proposed disclosure subject to several conditions. The Australian Privacy Foundation and the Law Society, which had raised the concerns mentioned in relation the the application, did not submit any comments on the draft determination. A statutory conference was scheduled for 29 January 1991. The applicant alone attended and did not make any additional submissions.

 

5. Conclusion

Section 72 empowers the Privacy Commissioner to issue a determination permitting an act or practice which would otherwise breach the Act where he is satisfied that the public interest in the agency doing the act outweighs to a substantial degree the public interest in adhering to the Information Privacy Principle that is relevant.

Public Interest in Research into Homicide

Homicide is the subject of public concern and considerable media coverage. The agency suggests that this coverage may give rise to considerable misconceptions regarding the overall extent and level of homicide in Australia. Although analyses of trends in homicide have been undertaken on an occasional basis in some states, there is no ongoing monitoring system in any state or territory. Uniform homicide statistics are not available. Basic descriptive statements on a national basis about the proportion of homicides occurring within the family setting, or committed by juveniles, or identification of the number of homicides committed in the course of other offences such as robbery or sexual assault, can not be accurately made.

The agency argues that research of the kind proposed by the Institute would improve public understanding and provide a foundation for the rational formulation and implementation of public policy in such areas as family law, child protection and firearms regulation. The agency also states that the analysis would permit more precise identification of those characteristics which place individuals at risk of homicide. Such an analysis would also provide indicators with which to assess the relative efficiency and effectiveness of preventative measures currently in place.

These arguments meet to a significant extent, I consider, the concerns of the Australian Privacy Foundation and the Law Society, in relation to need.

I have also given weight to the fact that the need for more effective homicide monitoring has the support of all governments in Australia.

Privacy Interests

The privacy interests which most concern me in relation to the proposed activity are those of suspects and of witnesses. The offender, as determined by a trial, has it seems to me, a lesser claim to privacy protection. (Though the position may alter in the case of an offender who has served his sentence and wishes to live in the community without further attention.)

But witnesses often have, I feel, a real need for privacy to be afforded them. Even if their identities have been publicly revealed at trial, they would often wish to "sink back" into the community and not have the fact of their involvement further known or discussed. On the other hand, I acknowledge that there would be some witnesses who would have no concerns in this regard, would be keen to have their identities disclosed, be approached and have homicide research assisted.

Certainly those who have provided evidence of value to the authorities but who were not called at trial (eg informers), may be very concerned about their involvement in the solution of a homicide becoming known.

Equally, people who were among those suspected of homicide but not prosecuted would, I feel, be very concerned over that information passing out of police hands. This is the aspect of the present application which most troubles me. The homicide records which are affected by the present application are essentially those relating to homicides within a small population centre, the ACT. It seems to me that there is more than the usual likelihood that a researcher employed by another agency located in the same area may recognise the names of people listed in files as suspects. In making this point, I acknowledge that the AIC does not propose to record any names of suspects (nor witnesses); nevertheless, it is anticipated that the researcher will sight that information.

I did give consideration to whether I should suggest that the agency cull or de-identify the file in regard to suspects and witnesses before allowing inspection by the researcher. I have concluded that this would tend to defeat the objects of the research which, as I understand it, seeks to focus on relational or social-circumstances characteristics.

I have also discussed the issue with the Director of the AIC. He acknowledged the importance of the sensitivities which I have raised, especially in relation to suspects. But he said that it was commonplace in criminological research for researchers to be given access to complete files and that important studies in relation to the causes of crime in such areas as sexual offences would have been impeded without access to personal particulars in the initial stage of the research.

I have concluded that the public interest in research of the kind envisaged substantially outweighs the need to adhere to Information Privacy Principle 11 of the Privacy Act. Accordingly, the agency should be permitted to disclose, in personally identifiable form, information contained in relevant police files to the Homicide Monitoring Centre. I have laid down a number of conditions in the determination which seek to ensure that:

• access to files occurs on agency premises under agency supervision.
• the researcher given access is personally authorised by the Director of the Institute, and is a researcher with substantial prior experience in criminological research activities, involving access to sensitive information.
• no records in personally identifiable form are made by the researcher in relation to the identities of witnesses, suspects, or offenders.

(I have not addressed the conditions which should apply to the disclosure of personal particulars of victims. They will be deceased. The Privacy Act confines its protections to information and records relating to the living (see s. 6 - definition of 'individual'). Any disclosures in relation to deceased persons are not governed by the Act.)

LIST OF ATTACHMENTS

 

A: Notice of Application B: Responses to Notice

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) The Australian Privacy Foundation;

(2) The Law Society of NSW;

 

ACKNOWLEDGEMENTS

(1) South Australian Privacy Committee dated 29 October;

(2) Department of Defence dated 29 October 1990;

(3) Department of Prime Minister and Cabinet dated 29 October 1990;

(4) Department of Administrative Services dated 29 October 1990;

(5) Department of Industry, Technology and Commerce dated 30 October 1990;

(6) Public Service Commission dated 31 October 1990;

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