FH v Commissioner, New South Wales Department of Corrective Services
[2003] NSWADT 72
Date of Decision: 7 April 2003
Case Note
This case indicates the limits the Administrative Decision Tribunal is likely to set when reviewing a decision by an agency about the retention of personal information and the adequacy of security measures adopted. In particular, the case examines a determination by the Department of Corrective Services (the Department) about ex-inmate records held on the computerised Offenders Management System (OMS).
FH was a correctional inmate. After serving part of a sentence, his conviction was overturned on appeal. He sought review of the decision by the Department not to remove his information from circulation or “delete” his inmate record.
The Department argued that it had legal authority to collect personal information on inmates serving full-time custody in NSW correctional centres. It also referred to obligations on public sector agencies under the State Records Act 1998 to preserve records, and the possibility of penalties for non-compliance.
The Department acknowledged that it had kept information about the applicant in both its manual and computerised record systems. At a planning meeting before the Tribunal the Department agreed to remove the applicant’s manual records from its active system, and only provide restricted access to them. The Tribunal accepted that this was a practical measure to provide a high level of security for manual records and to protect against unauthorised use and disclosure. The decision of the Tribunal therefore focused on the applicant’s computerised record held in the active part of the OMS.
Retention of the Ex-inmate Records
Firstly, the Tribunal considered the issue of compliance with IPP 5 (s.12(a)): had the Department held the applicant’s record for “longer than necessary having regard to the purposes for which it may lawfully be used”? The applicant had argued that inmate records should not be retained at all once they leave the prison system and especially where their conviction had been quashed.
The Tribunal accepted the justifications put forward by the Department for retaining ex-inmate records. These included the possibility of litigation, the use of records by police as an intelligence resource and the need for information regarding custody where the former inmate re-enters the correctional system. The period of retention to date was not unreasonable having regard to those reasons. In addition, the Tribunal noted the Department’s acknowledgment, that at some point it would require a policy on long-term record retention and disposal.
Differentiation in Treatment of Ex-Inmate Records
As an alternative, FH submitted that if his ex-inmate record was to be retained it should at least be removed from the active system. Referring to IPP s.12(c), he asserted that there were insufficient safeguards against unauthorised use and disclosure.
Under the existing system, both inmate records and ex-inmate records are held in the OMS with little differential treatment. The Department conceded that it would be preferable if ex-inmate records were held in a less active environment. It went on to point out that attempts have been made to address this matter in their new records system. Much more limited ex-inmate information is contained in the active environment of the new system with the remaining data held in archival form. Access to information in the new system is restricted to authorised officers at the Department’s head office. The information cannot be accessed at any other locations. Furthermore, the Department is at an advanced stage in moving to the new system.
In examining the security issues, the Tribunal considered that it was necessary to take account of “the evolutionary character of security practices, especially in a major operational environment”. While the security safeguards of the existing OMS may be insufficient, the Department has taken steps to address this deficiency in its new system. Hence, the Tribunal did not need to consider whether existing practices amounted to a contravention. It did however note that if the new system was not implemented within the promised 12 months time frame, the Tribunal might in a future action form a different view as to compliance with the IPPs.
In addition, the Tribunal examined the Security Policy of the Department and noted some inadequacies which could be addressed. Notwithstanding these shortcomings, the Tribunal accepted that it was not necessary for the Department “to show that the security policies and practices are perfect or ideal in every respect”.
Relevance of Retaining Ex-Inmate Records
FH also argued that his record should be deleted from the system because it was not lawful to continue to hold it. He relied on IPP 9 (s.15(1)(b)) which requires that a record be “relevant, up to date, complete and not misleading” having regard to the purpose for which is was collected and any directly related purpose.
The Tribunal dismissed this argument for the same reasons discussed in relation to IPP s.12(a). It held that, in terms of IPP s.15, the reasons for retaining records could be described as “directly related purposes”.
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