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08 Apr 2009

Privacy v freedom of information: inherently incompatible?

by Jan Cumming

Given that there are differences between the New Zealand and Australian legislative schemes, the issues that arise at this interface may not be resolved in the same way in Australia.

A recent decision of the New Zealand High Court illustrates the potential for conflict between freedom of information legislation promoting openness and transparency, and legislation protecting privacy.

In Director of Human Rights Proceedings v Commissioner of Police [2008] NZHC 1286 (14 August 2008), the New Zealand High Court considered the relationship between the Official Information Act 1982 (NZ) (New Zealand's equivalent of the Freedom of Information Act 1982 (Cth)) and the Privacy Act 1993 (NZ).

How is this New Zealand case relevant to Australian law?

Both the New Zealand and Australian freedom of information enactments recognise that official information may contain personal information and that the disclosure of official information may impact upon an individual's privacy. Section 9 of the Official Information Act 1982 (NZ) provides that good reason for withholding official information exists where the withholding of the information is necessary to protect the privacy of natural persons, including that of deceased natural persons (s 9(2)(a)) unless the public interest outweighs the considerations favouring withholding the information (s 9(1)). Section 41 of the Freedom of Information Act 1982 (Cth) contains a similar balancing exercise in considering whether disclosure would involve the unreasonable disclosure of personal information about any person, including a deceased person.

Likewise, both the New Zealand and Australian Privacy Acts recognise that disclosure of personal information may be authorised under other legislation (most significantly, freedom of information legislation). Both the Privacy Act 1993 (NZ) and the Privacy Act 1989 (Cth) contain Information Privacy Principle 11 providing that personal information is not to be disclosed unless certain specified exceptions apply. Both Acts provide an exception where the disclosure is required or authorised by or under law: Privacy Act 1989 (Cth), section 14 Information Privacy Principle 11(1)(e), Privacy Act 1993 (NZ) contained in a separate section, section 7(1).

Director of Human Rights Proceedings v Commissioner of Police is relevant in Australia given the general similarity between the relevant legislation and the almost identical wording contained in section 7(1) of the New Zealand Privacy Act and Information Privacy Principle 11(1)(e) of the Australian Privacy Act providing that Principle 11 does not apply where the disclosure is authorised or required by law.

What were the facts?

The case concerned an appeal by the Director of Human Rights Proceedings against a decision of the Human Rights Review Tribunal rejecting a claim for breach of privacy stemming from the release of information about a domestic violence incident. The police had been called to an incident involving the complainant and her partner, as a result of which the police temporarily removed the complainant and her children from their home. Although no charges were laid, the police completed a domestic violence report. On being told of the incident, the children's father questioned the complainant who denied that the incident had taken place. In response to an application by the children's father under the Official Information Act, the police released the domestic violence report to him believing that, as he was the children's father, he was entitled to it and because the privacy interests of the parties were minor.

The complainant claimed that there had been a disclosure of personal information in breach of principle 11 and brought proceedings under the Privacy Act claiming compensation for emotional harm she allegedly suffered as a result of the release of the report.

In response to the claim, the police relied upon section 48 of the Official Information Act which confers an immunity from civil liability where information is released "pursuant to" that Act in good faith. The police also relied upon section 7(1) of the Privacy Act which provides that nothing in Information Privacy Principle 11 derogates from any provision in any other enactment which "authorises or requires" personal information to be made available.

The Human Rights Review Tribunal dismissed the complainant's claim. The Director of Human Rights Proceedings brought the appeal to the High Court to obtain clarification about the interface between the Official Information Act and the Privacy Act. The Court noted that the purpose of the former is to make information held by public agencies (which may include personal information) more freely available where the purpose of the latter is to protect personal information from disclosure.

How did the New Zealand High Court resolve these claims?

On the claim that section 48 of the Official Information Act applied, the Director argued that for the release of information to be "pursuant to" the Act, the police must have first correctly identified the relevant interests (ie, those requiring protection and those favouring disclosure) and then considered those competing interests in good faith. While the Director stopped short of arguing that the decision had to be correct before the section 48 immunity were attracted, he argued that the Tribunal had to examine the police's decision-making process. This process, it was said, was deficient because there were no public interests favouring disclosure and the police had taken into account an irrelevant consideration (ie, that the requestor was the children's father). Thus, it was argued, that the police had not released the information "pursuant to" the Act. The Director argued that the immunity conferred by section 48 should not be interpreted so as to render privacy rights "completely nugatory" or to deprive the complainant of a remedy under the Privacy Act.

The Court rejected this argument, holding that the Tribunal was not required to consider the police's reasoning processes or the correctness of the decision when applying the Official Information Act. All that was required for the section 48 immunity to apply was that the police released the report in the honest belief that the Act required disclosure. That interpretation accorded with the legislative intention behind section 48 to confer a wide immunity. The Director's interpretation, the Court thought, would have an inhibiting effect and undermine the benefit of the immunity. While that left the complainant without a remedy, as a decision to release information is not subject to review, Parliament could have amended section 48 when it enacted the Privacy Act.

A key difference between the New Zealand and Australian legislation is that the immunity conferred by section 91 of the Freedom of Information Act 1982 (Cth) is far more limited. Section 91(2) provides that where the Minister or delegate makes a bona fide decision that access was required by the Act to be given then no action lies for defamation, breach of confidence or infringement of copyright. A second key difference is that the Freedom of Information Act 1982 (Cth) contains a procedure to be followed where it appears that a person might reasonably wish to contend that a document is an exempt document as a document affecting personal privacy: section 27A.

The High Court also rejected the Director's argument on the scope of the Tribunal's role in considering the police's application of section 7 of the Privacy Act. The Director had argued that the Tribunal should have considered the quality of the police's decision-making process to determine whether the Official Information Act "authorised or required" the information to be released. The High Court considered that if the Tribunal was intended to review the quality of the exercise of discretion, the Privacy Act would have said so expressly. Section 7 was not intended to provide an alternative or additional basis for the review of decisions under the Official Information Act. In the Court's view, the expression "authorises and requires" in section 7(1) of the Privacy Act is "simply a descriptive phrase, describing the type of provision which over-rides Principle 11. It does not import the need for a qualitative assessment to be done on a case by case basis. Much clearer words would have been required to achieve that". The Court was reinforced in its conclusion by the fact that the Director's interpretation would result in the Tribunal applying the provisions of other enactments outside its expertise.

Conclusion

Director of Human Rights Proceedings v Commissioner of Police illustrates the tension that can exist at the interface between freedom of information legislation and privacy legislation. The objective of promoting open and transparent government can sometimes come into conflict with the protection of an individual's privacy. Given that there are differences between the New Zealand and Australian legislative schemes, the issues that arise at this interface may not be resolved in the same way in Australia. The decision of the New Zealand High Court, however, demonstrates what conflicts can arise and how the issues are being resolved in New Zealand.

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