Destruction of forensic material and DNA profiles

Destruction or de-identification?

41.150 Part 1D of the Crimes Act defines destruction of forensic material or any information obtained from it in terms of de-identification rather than physical destruction. Section 23WA(5) provides that:

a person destroys forensic material taken from another person by a forensic procedure, the results of the analysis of the material or other information gained from it if the person destroys any means of identifying the forensic material or information with the person from whom it was taken or to whom it relates.

41.151 MCCOC explained the reason for this position in its discussion paper:

Forensic scientists advise that once samples have been subjected to the various processes of analysis in a forensic laboratory it would be extremely difficult to trace all remnants of the samples and destroy them. The same also goes for all the different records of the DNA profile. However, they point out that the material is often labelled with a numerical Code which if destroyed makes it impossible to identify the sample.^[137]

41.152 The Revised Explanatory Memorandum to the Crimes Amendment (Forensic Procedures) Bill 2001 (Cth) noted that the

definition recognises that it is not feasible to require the destruction of all the microscopic forensic material taken from a person that inevitably remains on a laboratory bench.^[138]

41.153 The AFP’s guidelines provide that, when material is required to be destroyed, the investigating member must as soon as practicable notify the Forensic Services Biology Team of the requirement (including the date, if required, by which time the material must be destroyed) and ensure that all written records, video and audio tapes relating to the sample that are in the possession of AFP members and the Office of the Director of Public Prosecutions are destroyed. The principle biology forensic reporting officer must then destroy the actual sample and the means of identifying the person to whom the sample (or information derived from it) relates; and forward a report confirming destruction of the material to specified persons.^[139]

41.154 In a consultation, the AFP advised that its practice is to physically destroy the DNA sample and de-identify the DNA profile obtained from the sample. The sample is physically destroyed by bio-hazard destruction, while the profile is deleted from the electronic database and all paper references to it are destroyed.^[140]

41.155 The NSW Police Service advised the Inquiry that it observes the following practice for destroying forensic material and profiles:

[U]pon the issue of a destruction order, the identifier for the sample record to be deleted is entered on to the DNA database. Located records are displayed and are deleted by the authorised system user. All personal details are deleted, including name, date of birth, gender and any records associated with the taking of the DNA sample, eg barcode and sample bag number. In addition, the Division of Analytical Laboratories physically destroys the DNA sample and any aliquots or ‘remnants’ of that sample. A record of the profile may be retained if it exists in a final results table, as a record of the analysis process, but only if all identifying links to it have been deleted. This would not enable a person to trace the personal details of the profile in the results table. Physically destroying such records would place inordinate demands on the system users and serve no useful or practical purpose.^[141]

Submissions and consultations

41.156 In DP 66, the Inquiry asked whether the balance should be tipped in favour of physical destruction of forensic material and information obtained from it in order to maintain information security and public confidence in the use of DNA profiling for criminal investigations.^[142] The Inquiry noted that good laboratory practices should allow for location of all remnants of a sample after analysis, and the destruction of these remnants; and good record keeping should allow for location of all references to the DNA profile and other identifying information.^[143]

41.157 Several submissions supported retention of the existing definition of ‘destruction’.^[144] The Victoria Police submitted that de-identification appears sufficient. They suggested that in Victoria, due to issues within the item management system and the software attached to the DNA interpretation phase, it is not possible to fully destroy all records. Instead, they suggested that

it should be legislated that it is an offence to knowingly and deliberately pass on or interrogate data held from samples taken under this Act that should be destroyed rather than it being an offence to not having destroyed the information. Thus if something in the process cannot be adequately destroyed then the onus is now shifted to attempting to make a connection between the DNA profile and the person …^[145]

41.158 The Victoria Police submitted that most laboratory databases are commercially purchased and therefore the ability to alter the code to allow for full destruction is not generally available. As a result, the:

Victorian Forensic Science Centre’s preferred position is to reduce the need to destroy to breaking the link and making it an offence to re-establish the link and knowingly pass on that information. Current law prohibits the use of the information in a criminal investigation, as any evidence would be tainted. Passage of any DNA or the original sample to a third body such as a centre for disease testing with linkages to insurance companies should naturally be prohibited.^[146]

41.159 In its initial submission, the Commonwealth Attorney-General’s Department submitted that the definition of ‘destruction’ reflects the practicalities in that it is extremely difficult to trace and destroy all remnants of the forensic samples after analysis, or all the various records of the DNA profile.

The suggestion that forensic material could be re-identified in the future is an important issue but there are strong incentives to ensure proper destruction occurs. For example, the failure to adequately destroy these identifying links may constitute an offence … Further, any evidence obtained and subsequently relied upon from a failure to properly destroy the identifying links will be inadmissible evidence … Even where the profile is on the system, it will not be possible, in practice, for anyone other than authorised officers from the respective jurisdiction from which the DNA profile has been provided to identify the profile.^[147]

41.160 In a subsequent submission, the Department submitted that an amendment to the current definition of ‘destruction’ would raise a number of practical difficulties.

The current definition recognises that it is not feasible to require the destruction of all the microscopic forensic material taken from a person that inevitably remains on a laboratory bench. That view was overwhelmingly conveyed to MCCOC by the forensic science community during the development of the Model Bill. Although the legislation is in its early days, there has been no evidence to indicate that the current definition of destruction has resulted in any breach of privacy or civil liberties.^[148]

41.161 The NSW Police Service submitted that:

The practical difficulties in tracing and physically destroying all remnants of a sample do justify confining privacy protection to de-identification rather than physical destruction of all forensic material and information. This is particularly so in respect of information that may be disseminated to a wide range of people and thus almost impossible to trace without a great deal of expense. If the information cannot be identified it would seem to be a waste of resources to trace that information.

There may also be sound reasons for the destruction of samples collected from volunteers, or suspects who are later exonerated, the more important aspect is that the link or identifier between the source and the DNA profile be destroyed. There are sound scientific reasons for a laboratory to maintain and accumulate a bank of anonymous DNA samples for R&D purposes … it is our view that de-identification, if carried out as described, does protect the privacy of the individual particularly if the original biological sample (the buccal swab say which has a name identifier), is also destroyed.^[149]

41.162 By contrast, the Inquiry received a number of submissions, and heard views in a number of consultations, supporting a new legislative definition based on physical destruction of the forensic material and information obtained from it.^[150] A number of these submissions suggested that de-identification might not sufficiently protect the privacy of the person from whom they were obtained, by allowing for future re-identification of information; therefore physical destruction was the most secure option.

41.163 The Office of the Victorian Privacy Commissioner submitted that ‘destruction’ should mean physical destruction, noting that ‘it is questionable whether a biometric such as DNA can ever be permanently de-identified, given it is essentially comprised of identifiable material’.^[151]

41.164 National Legal Aid submitted that:

de-identification might not sufficiently protect the privacy of the person from whom they were obtained and therefore physical destruction was the most secure option … logic would seem to suggest that if the numerical code is destroyed making it impossible to identify the sample that there is still a sample capable of isolation and therefore destruction. If the MCCOC concern is essentially about traces or remnants that no longer form part of the original ‘sample’ and can no longer be identified, then perhaps that part of the sample has already been ‘destroyed’.^[152]

41.165 The NSW Legal Aid Commission submitted that:

De-identification is not sufficient because of widely held fear about the possibility that the person’s identity may somehow be reassigned to the sample, and concerns about why the samples are being kept. Many people have strong concerns about government authorities having access to their genetic information, and are entitled to the assurance that the genetic material and any profiles or analysis obtained from the material will be destroyed once they are of no further forensic use.^[153]

41.166 Privacy NSW suggested that the

current definition of destruction creates too great an opportunity for abuse. The overwhelmingly probative value ascribed to DNA samples calls for stronger safeguards, for example against the creation of a ‘black market’ of samples that have never been fully de-identified and which can be planted at crime scenes. While there may be practical difficulties in complying with a regime of comprehensive destruction, it should be possible to draft a requirement which at least minimises this kind of risk.^[154]

41.167 The Androgen Insensitivity Syndrome Support Group submitted that:

this definition of destruction amounts to a deception by omission and samples subject to destruction should be physically destroyed. Physical destruction is the only way [to] alleviate the temptation to later use human tissue samples for purposes not originally consented to.^[155]

41.168 Dr Ian Freckelton also raised concerns regarding de-identification of information in relation to the Victorian forensic procedures legislation:

The problematic components of the ‘de-identified’ database are those consisting of persons who have not been charged, whose charges have not been proceeded with, who have voluntarily supplied samples and who have been found not guilty of criminal offences. The question is whether the de-identification process is meaningful and whether an arm of the state should be permitted to retain such potentially identifying information about members of the community against whom no adverse finding has been made. The issue becomes the more stark in light of situations in which information held by policing authorities has been retained contrary to protocols, the issue being whether compliance with even legislative measures would take place when the temptations to breach them may be very significant.^[156]

41.169 In a consultation, Professor Ron Trent, Chair of the Department of Molecular and Clinical Genetics, Royal Prince Alfred Hospital, commented that in his view it would be possible to physically destroy DNA samples and profiles. He noted that the chain of custody for samples is very detailed in forensic laboratories and therefore it should be possible to track all of the separate parts of a particular sample for the purpose of destruction. While destruction of profiles stored in computer databases might be difficult, he considered it would not be impossible.^[157]

Inquiry’s views

41.170 This issue involves two competing considerations. On the one hand, there is the need to maintain public confidence in the use of DNA profiling generally, and in particular the protection of personal privacy rights to the extent practicable. On the other hand, there are concerns about the practical difficulty of ensuring that all remnants of a sample or profile have been located and destroyed.

41.171 The Inquiry does not find the arguments advanced in favour of de-identification compelling in relation to genetic samples. Good laboratory practice requires that it should be possible to locate every remnant of a sample after analysis, and good record keeping should allow for location of all paper-based references to the DNA profile and other identifying information. Indeed, the AFP has advised the Inquiry that such information is currently physically destroyed.

41.172 In relation to DNA profiles held in computerised database systems, the Inquiry recognises that some practical difficulties might arise. For example, the Inquiry has been advised that a record of a profile might be retained in a computer database’s backup system after it has been deleted from the database.

41.173 The Inquiry confirms its preliminary view that the balance should be tipped in favour of physical destruction of forensic material and information obtained from it, in order to maintain information security and public confidence in the use of DNA profiling for criminal investigations. However, in relation to profiles, where there is no capacity for further testing, it would be sufficient protection for these to be permanently and irreversibly de-identified. It should be noted in this context that coded data should not be considered ‘de-identified’ because coding, by its very nature, is reversible.^[158]

Management of destruction dates

Crimes Act provisions

41.174 The destruction requirements for forensic material and DNA profiles are contained in various places in of Part 1D of the Crimes Act, depending on the context in which the information was collected.

41.175 Forensic material obtained from a suspect must generally be destroyed as soon as practicable after:

• an interim order for the carrying out of a forensic procedure is disallowed, or the retention period specified by the court has expired;^[159]
• 12 months have elapsed since the forensic material was taken and proceedings have not been instituted against the suspect, or have been discontinued, and no warrant for apprehension has been issued;^[160] or
• the suspect is convicted but no conviction is recorded, or the suspect is acquitted and no appeal is lodged against the acquittal (or if an appeal is lodged, the acquittal is confirmed or the appeal is withdrawn).^[161]

41.176 Forensic material obtained from a serious offender must be destroyed as soon as practicable after his or her conviction is quashed.^[162]

41.177 If a volunteer (or parent or guardian) expressly withdraws consent to the retention of the forensic material taken or of information obtained from the analysis of that material, the forensic material and information must be destroyed as soon as practicable after the consent is withdrawn.^[163] To the extent that it is relevant, the volunteer (or parent or guardian) must also be informed that information placed on a DNA database system will be retained for such period as the Commissioner and the volunteer agree, and must then be removed from the system.^[164]

41.178 Where a magistrate finds that forensic evidence is inadmissible under s 23XX, any forensic material taken from the person by that forensic procedure must be destroyed.^[165]

41.179 A person is guilty of an offence if he or she knowingly or recklessly causes any identifying information to be recorded or retained on the system after the forensic material is required to be destroyed.^[166]

Destruction in practice

41.180 DP 66 noted that, with some exceptions Part 1D of the Crimes Act does not assign responsibility for notifying the person charged with destroying forensic material (or the information obtained from it) of the required destruction date.^[167]

41.181 In relation to profiles held on the NCIDD system, CrimTrac advised the Inquiry that the draft Memorandum of Understanding between the agency and each participating jurisdiction provides that the jurisdictions must manage the destruction dates. Once the destruction date has been entered into the system the database will automatically search each night for the profiles that must be destroyed.^[168] However, CrimTrac has advised that many of the profiles uploaded onto the NCIDD system do not have specified destruction dates.^[169]

Issues and problems

41.182 There is a lack of clarity in the legislative provisions for the management of destruction dates for forensic material, and the profiles obtained from such material. As a result, problems may arise in practice in ensuring that notice is given to the laboratory storing the forensic material, and the responsible person for a DNA database system, that the information should be destroyed. In addition, there is currently no legislative basis for persons whose information should be destroyed to confirm that this has been done.

Submissions and consultations

41.183 DP 66 proposed that forensic procedures legislation should be amended to: specify the person responsible for notifying the forensic laboratory and CrimTrac of the destruction date of forensic material and any information obtained from it; establish a process for persons to obtain confirmation that their forensic material, and any information obtained from it, has been destroyed; and provide a standard consent form to enable a volunteer (or parent or guardian) to specify the retention period for both the forensic material and any information obtained from it.^[170]

41.184 Most of the submissions supported the proposal.^[171] In a consultation, Liberty Victoria emphasised the need for oversight of the destruction of the material, suggesting that an ombudsman or the person to whom the information relates should have some way to ensure that it has been destroyed.^[172]

41.185 The Law Institute of Victoria supported the proposal, expressing support for increased accountability of the staff working in forensic laboratories, whether directly handling forensic sampling, conducting analysis or performing administrative and recording duties.

In addition, the Law Institute believes that any DNA (or extracted information) accessed from a database should then bear the ‘footprint’ of the person and organisation accessing it. Creation of the footprint should ideally require that person to provide their purpose in accessing the information, and they should be open to criminal prosecution for unauthorised access or for subsequent misuse of the information obtained.^[173]

41.186 The Victoria Police submitted that:

It should be clarified whether this proposal requires a personto be specified, rather than a position. As a person occupying a certain position may change within an organisation, Victoria Police suggest it would be more appropriate to specify the position responsible for notifying the forensic laboratory, rather than a person.^[174]

41.187 The NSW Police Service also submitted that the person responsible should be expressed as a position rather than an individual person, and suggested that the function should be delegable. The Police Service noted that:

Anyone who has provided a forensic sample to NSW Policecan write to the Commissioner seeking confirmation that the forensic sample has been destroyed. However, to provide such information routinely to all donors without a written request would, logistically, be very difficult … It is also considered that many donors would be willing to trust the honesty and integrity of NSW Police to destroy forensic material in accordance with the legislative requirements and would not require written confirmation of this destruction … It would be difficult for a volunteer, when providing a DNA sample, to specify a retention period as it would be impossible at that time to determine the likely duration of any police investigation.^[175]

41.188 The Queensland Government submitted that the matters dealt with in the proposal were more appropriately located within policy and practice, rather than legislation or regulations.^[176]

Inquiry’s views

41.189 The Inquiry considers that the framework of responsibility for the management of destruction dates requires clarification. For example, Part 1D of the Crimes Act currently prohibits a person from causing any identifying information about a person to be recorded or retained in a DNA database system at any time after the forensic material is required to be destroyed, where the person is reckless as to the recording or retention, or as to the destruction requirement.

41.190 As noted above, Part 1D generally does not place responsibility on any person or officer to notify the person administering a DNA database system of the relevant destruction date for profiles held on the system. In practice, a profile (or other information) could be retained on a DNA database system after its destruction date due to an omission to advise the administrator of that date. In this case, it is unlikely that the elements of the offence would be satisfied.

41.191 DP 66 proposed that the legislation should be amended to specify the person responsible for notifying the forensic laboratory and CrimTrac of the destruction date of forensic material and any information obtained from it.^[177] Section 71 of the Criminal Investigation (Identifying People) Act 2002 (WA) could provide a model for legislative amendment. Section 71 ascribes responsibility for destroying ‘identifying information’. If information or anything else that must be destroyed under the Act is in:

• the possession of the Western Australian Police, the Commissioner of Police must ensure it is destroyed;
• the possession of a person other than the Western Australian Police, that person must ensure it is destroyed; and
• a forensic database, the person who controls or manages the database must ensure it is destroyed.

41.192 This provision makes clear who has ultimate responsibility for managing destruction. Where forensic material is held by the police or by an independent forensic laboratory, the body holding the material is responsible for its destruction. Where a profile is held on a DNA database system, the system’s administrator is responsible for its destruction. Therefore, where the administrator is uncertain as to a destruction date, the administrator must ensure that it is informed of that date by the relevant police service.

41.193 The Inquiry recommends that the Commonwealth amend the Crimes Act to assign ultimate responsibility for managing the destruction of forensic material and any information obtained from it.

41.194 In practice, the Inquiry considers that destruction dates should be entered into the NCIDD system, and any other DNA database operating under the Crimes Act, at the time the profile is uploaded onto the system.^[178] An AFP officer or unit should be given responsibility for managing these destruction dates, and procedures should be developed for a person to obtain written confirmation that his or her forensic material and profile have been destroyed. For example, the Victorian forensic procedures legislation currently provides for the issue of a certificate of destruction, upon request.^[179]

41.195 In addition, the Commonwealth should develop formal policies and procedures to enable a volunteer (or parent or guardian) to specify, from a range of options, the retention period for his or her forensic material and any information obtained from it; and to establish a process for persons to obtain confirmation that their forensic material, and any information obtained from it, has been destroyed.^[180]

41.196 In the context of a criminal investigation it might be more practical for a volunteer to consent to a general retention period, such as ‘a period of 30 days’, or ‘until the end of the investigation period’ for that particular offence. This will depend on the context of the investigation, and the reason for providing the genetic sample. However, the Inquiry recognises that the volunteer has the legislative right to withdraw consent to the retention of this information (see above for more detail) and does not suggest that this right be removed for any reason.