Privacy Law and Policy Reporter
In his last report before his term of office expires, NSW Ombudsman David Landa has stressed his continuing dissatisfaction with the NSW police service's handling of allegations of improper access by police to criminal records and other confidential records (see 1 PLPR 89 and 94). He received 173 such complaints in 1993-1994, compared with 186 in 1992-1993. He comments:
The circumstances of these improper accesses varied greatly in nature and seriousness.
A detective senior constable accessed personal information relating to his ex-wife to ascertain her financial position and the identities of her acquaintances. A detective inspector accessed the criminal history of his former daughter-in-law's new husband, ostensibly out of concern for the security of his grandchildren. A senior constable accessed RTA records relating to a female public servant employed by the police service to establish her age. A constable accessed the driving record of a person from whom he intended to purchase a vehicle. Another constable, summonsed for assault, accessed the system to obtain information relating to persons due to appear as witnesses in the assault case.COPS - more dangerous than ever
The COPS system (see 1 PLPR 46) only makes the dangers greater, he says:
The potential for misuse of computerised information systems by police officers is now greater than ever.
The Computerised Operational Policing System (COPS) which became operational in April 1994, now centralises a large amount of information which was previously held in separate files or less accessible data-bases. Much of this information is now instantly accessible to police officers, posing a serious threat to privacy and other basic rights if not used for legitimate reasons.Preventative steps taken
The Ombudsman acknowledges that some preventative steps have been taken: a Code of Best Practice has been distributed; all officers have been required to sign a 'Statement of Responsibility' concerning these systems; warnings concerning severe Crimes Act penalties appear whenever an officer logs into the computer system; the Police Association has warned its members that random audits of accesses are taking place; and negotiations are continuing between the Ombudsman and the Police Service over the recording of reasons for access to the system (see 1 PLPR 89).Slaps on the wrist
However, the Ombudsman's main complaint still has to do with police reluctance to treat offenders with sufficient severity:
The attitude of Police Service Command appears to be that the appropriate manner of dealing with the majority of such sustained complaints is to treat them as minor disciplinary matters with offenders deserving of the penalty of counselling or, at most, admonishment.
An example of this 'slap on the wrist' approach is included in Cases and Complaints in this issue (1 PLPR 171). The Ombudsman's view is that departmental charges should generally follow improper access, regardless of motive, and that in any serious circumstances charges of unauthorised access to computerised information under s 309 Crimes Act 1914 (NSW) should result.
The Ombudsman is an inspecting authority under the Telecommunications (Interception) (NSW) Act 1987, and regularly inspects the records of authorities which intercept phone calls. However, he is precluded by the Act from reporting the results of inspections in the Annual Report, and limits himself to noting that ensuring compliance is a key area identified in his corporate plan.
At the IIR 'Managing Information Privacy' Conference on 3-4 November 1994, Assistant Commissioner (professional responsibility) Jeff Jarratt stated that, from now on, all serious breaches would be dealt with under s 309 Crimes Act. He also stated that 1,300 random audits of COPS had resulted in 12 matters being investigated and three probable breaches were identified.