Privacy Act 1993

1
Privacy Act 1993

• Recent Decisions of the Human Rights Review
  Tribunal and the Courts
• Tim McBride

2
HRRT

• Recent Trends
• Volume Type
• Parties represented / unrepresented
• Pre-hearing rulings
• Discovery / inspection
• Jurisdiction
• Decisions quality / length
• Remedies Awarding of costs
• Appeals against HRRT decisions

3
Observations

• Bulk of HRRTs decisions appear to be in the
  Privacy Act area
• Approximately 70 of the work of the Director of
  Human Rights Proceedings is in the Privacy Act
  area
• Lay people not understanding how the HRRTs role
  under the Privacy Act is intended to operate (eg.
  Ram Rodger)

4
Observations (ctd)

• Law firms not understanding their obligations
  under the Act
• (ie. CBN Apostolakis)
• Prisoners / ex-prisoners ( their spouses /
  partners) attempting to use the Act impact of
  the Prisoners and Victims Claims Act 2005 (eg.
  MacMillan Williams Marino Henry Rodger)

5
Human Rights Review Tribunal - Name

• Reference to 'Human Rights' confusing
• Some people may think that HRRT can deal with any
  'HR' issue
• Reference to 'Review' also confusing
• HRRT '... does not conduct anything like a
  judicial review of the (Privacy Commissioner's)
  opinions and processes.... In that sense the
  inclusion of the word Review in the Tribunal's
  name is misleading and unhelpful...' (Richardson
  (36/05) para 122).

6
HRRT Name (ctd)

• '... In every case, the Tribunal hears matters de
  novo ... (Richardson, para 123)
• Fact that the HRRT is a tribunal, and not a
  court, is regrettable In this commentator's
  view
• Opportunity should have been taken in 2001, when
  the Human Rights Amendment Act was passed, to
  upgrade the tribunal's status to that of a
  specialist court In this commentator's view
• Examples of specialist courts include the
  Employment Court the Environment Court and the
  Family Court

7
Fundamental Purpose of the Privacy Act

• Importance emphasised by HRRT in Lehmann (20/05)
• To promote and protect individual privacy
• Relevance of the OECD Guidelines (1980)
• Guidelines impose obligations on member states
• Privacy Act should be interpreted in sympathy
  with its objectives
• This is especially important, given that Privacy
  Act forms part of NZ's human rights law
• How lay people read / attempt to understand the
  Act, is important (Lehmann, paras 76-77, 96)

8
Privacy Act

• agency a key definition (s2)
• Exemptions from the above definition include in
  relation to its judicial functions, a court.
• Small v Ministry of Justice (Decision No 08/05)
• Strike out application by MoJ
• Issue Was the Registrar of a Family Court
  covered by the exemption?
• HRRT held that, in the particular circumstances,
  that Registrar was not covered
• Appeal by MoJ to HC
• Appeal successful - HC (Goddard J) 7 April 2006

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Meaning of personal information

• Definition s2 early CRT decisions
• Harder (CA) obiter comments
• Academic critiques
• Subsequent HRRT decisions
• Boyle (16/03) / CBN (48/04)
• Jans (21/03) / Apostolakis (15/05)
• Golden (13/05) / Stevenson (7/06)
• HRRT clearly uncomfortable with the obiter
  statements of members of the CA in Harder

10
Discovery / inspection of documents

• Director of Human Rights Proceedings v Richardson
  (36/05)
• First time the Director has commenced proceedings
• Office created by the Human Rights Amendment Act
  2001
• Aggrieved individual not a party to the
  proceedings

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Director of HRP v Richardson (ctd)

• Defendant R wanted discovery of correspondence
  the aggrieved person had had with the PC, and the
  documents comprising the Commissioners file on
  the matter
• Privacy Act, Part VIII, s116
• Human Rights Act 1993, ss 105-106

12
Director of HRP v Richardson (ctd)

• HRRT decision
• Limited to discovery issues (ie. at this stage)
• Contains valuable commentary on HRRT approach to
  discovery / inspection of documents
• PCs different roles in handling complaints
  discussed
• Assessor, investigator, conciliator, mediator,
  advisor
• Go-between (para 33)

13
Director of HRP v Richardson (ctd)

• Key issues
• Can the PC be compelled to make her files
  available for inspection? (para 57-105)
• answer no
• Can a party to litigation refuse to make
  documents which comprise his/her file of
  communications with the PC, available for
  inspection? (para 107-125) answer in certain
  circumstances (para 126-131)

14
Tribunals jurisdiction to hear cases under the
Privacy Act

• Position has been that an aggrieved individual
  may come direct to the HRRT, once the PC has
  exercised the discretion in s71 to take no
  further action in respect of the individuals
  complaint
• That position challenged in Lehmann (20/05)

15
Tribunals jurisdiction to hear cases under
Privacy Act (ctd)

• By a defendant?
• No, by the PC
• PCs argument the proposed interpretation
• HRRT response the conventional interpretation
  flowchart
• Is the HRRT correct?
• Other recent HRRT decisions discussing aspects of
  ss 82/83 include Steele (12/02) Waugh (9/03)
  and DAS (45/04)

16
IPP3 - Boyle v Manurewa RSA Inc (16/03)

• How is IPP3 to be interpreted?
• (see para 42-49)
• HRRT concerned about the approach taken by the PC
• Despite this, no breach of IPP3
• IPP11 breached
• However, interference with privacy (PA, s66),
• not established

17
IPP4 Stevenson v Hastings DC (7/06)

• The barking dogs decision
• Decision delivered 14 March 2006
• Monitoring devices set up by Council, following
  complaints
• Purpose was to record barking of plaintiffs dogs
• Plaintiff received standard form noisy dog
  letter from Council, but never told of monitoring

18
Stevenson v Hastings DC (ctd)

• Key issues included
• What harm did S suffer?
• Does IPP4 apply to attempts to collect PI, where
  no PI is in fact recorded?
• Was any PI about the plaintiff collected by the
  Council?
• Was the manner of collection such as to
  contravene IPP4?

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IPP6 Need for evidence

• Henry v McCarthy (and others) (12/04)
• Plaintiff required to
• Identify when s/he asked for the information
• What PI s/he asked for
• What the defendant did/did not do in response to
  his/her request (para 11)

20
IPP6

• Other decisions include
• CBN v McKenzie Associates (48/04) plaintiff
  successful
• Flynn v Work Income ( Others) (36/04)
  plaintiff struck out
• Rodger v NZ Police (4/05) plaintiff
  unsuccessful
• Apostolakis v Sievwrights (01/05) plaintiff
  successful

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Privacy Act 1993

• Part IV Good reasons for refusing access to
  personal information
• Nicholl v Chief Executive of the Dept of Work
  Income 2003 3 NZLR 426 (HC)
• Access request for PI held by Dept
• Request for informants identity refused
• Section 27(1)(a) applied
• Depts decision upheld by HRRT on appeal by HC
• HC held that the Depts fears that disclosure of
  the identity of the informant could discourage
  other potential informants from giving evidence
  were fully justified

22
Privacy Act 1993

• Marino v Dept of Corrections
• (AP 276/00 4 Feb 2003 HC Jurie J)
  successful appeal to HC re-striking out of IPP6
  proceedings subsequent HRRT proceedings
  unsuccessful

23
IPPs 6/7 Access to / correction of personal
information

• Issue When a breach of one of these IPPs has
  occurred, what, if any, harm is required to be
  established (ie. to amount to an interference
  with the plaintiffs privacy)?
• Wording of s66 (1) (2)
• CRT decisions
• HRRT decision in Jans v Winter (21/03)

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IPPs 6/7 (ctd)

• HC decision in Winter v Jans
• (CIV 2003-419-854)
• Subsequent significant HRRT decisions
• Macmillan (8/04) (para 16-32)
• Apostolakis (01/05) (para 88)
• Waugh (24/05) (para 154)
• Lehmann (20/05) (para 44)

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IPP 11Need for evidence

• Application of approach set out in
• L v L (HC)
• Has there been a disclosure?
• Onus of proof is on the plaintiff
• If satisfied, next step is to consider whether
  any exceptions to IPP 11 apply
• Onus of proof re any exception is on the
  defendant (PA, s87)

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IPP 11(ctd)

• If no exception applicable, the next step is to
  consider whether there has been any harm to the
  plaintiff (ie. of the kind contemplated by the
  PA, s66)
• Onus of proof to establish harm is on the
  plaintiff

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IPP 11 Need for evidence (ctd)

• Steps outlined by the HC in L v L
• Adopted by the HRRT in Steele v DWI (12/02)
• Applied more recently in
• Ram (27/03) see paras 34-49
• Clearwater (02/04) paras 72-133
• Golden (13/05) para 32

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What constitutes an interference with privacy?

• IPPs 1-5, 8-11
• PA, s66 (1)
• Causal link must be established between the
  adverse consequences (ie. the harm), the
  plaintiff has suffered AND the breach of one or
  more IPPs (or equivalent rules in a code of
  practice)
• Plaintiff can only be compensated for harm that
  was actually caused by that breach (or breaches)
• Harm can only be of the type / level contained
  in
• s66 (1)
• (see Hamilton v The Deanery (2000) Ltd) (28/03)

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Calculation of damages

• Section 88
• How done?
• Hamilton v The Deanery (2000) Ltd (28/03) (para
  41-58)
• Clear signal from the HRRT that it will be
  willing to re-assess the level of damages awards
  made under the Privacy Act
• (see para 54-57)

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Calculation of damages

• Feather v ACC (29/03) factors for the
  assessment of damages (see para 24)
• CBN (48/04) valuable appendix summarising
  earlier decisions where damages have been awarded
  under s88 (1) c, for breaches of IPP6
• Apostolakis (01/05) (see para 103-104)

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Recent costs awards against unsuccessful
plaintiffs

• Ram (27/03) - 3,000
• CD (15/02) - 10,000
• ONeill (43/04) - 3,000
• Henderson (42/04) - 12,500
• Williams (28/04) - 1,529.86
• Marino (46/04) - 1,990
• Henry (38/04) - 1,200
• Yakas (30/04) - 1,250

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Conclusion

• Tim McBride
• Barrister Legal Consultant
• timmcbride_at_xtra.co.nz