High Court Rules on Conflict Between Official Information Act and Privacy Act

High Court, Christchurch, CIV 2007-409-2984, 14 August 2008, French J. 

The High Court recently had to resolve the inherent conflict between the aims of Official Information Act 1982, which was enacted in order to make official information freely available, and those of the Privacy Act 1993 which was enacted to protect personal information from disclosure. It did so by construing both acts, with the result that the former act prevailed over the latter.

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Factual Background

In March 2002, the Police were called to a domestic violence incident involving the complainant and her new partner. Her children were present at the incident. As the complainant did not want her partner to be charged, the matter was dealt with by a formal caution. In accordance with standard procedure, a police officer completed a report recording the details of the incident including who was present and what was done.

More than a year later, the children told their father about the incident. The complainant denied that it had occurred as she feared that the information would be used against her in a pending Family Court proceeding relating to custody of the children. The father then made an application to the Police for information under the Official Information Act 1982 ("OIA").

The Police provided the father with a copy of the report believing that, as the father of the children involved, he was entitled to a copy. The complainant alleged that the disclosure breached Principle 11 of section 6 of the Privacy Act 1993, which prohibits an agency that holds personal information from disclosing it to anyone except in certain specified circumstances. She brought proceedings against the Police for compensation for emotional harm that she claimed had been suffered as a result of the disclosure.

The Human Rights Tribunal dismissed her claim although, according to the Court, its reasons for doing so were not entirely clear. The Director of Human Rights Proceedings brought an appeal against the Tribunal's decision in order to clarify the interface between the Privacy Act and the OIA.

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Legislative Framework

The purpose of the OIA is to make official information available. Section 48 of the OIA provides an immunity from civil and criminal liability where information is released pursuant to the OIA in good faith.

The Privacy Act, which, in contrast, was enacted to protect personal information from disclosure, sets out various principles relating to personal information. Principle 11 prohibits the release of personal information except in limited circumstances. Section 7(1) of the Privacy Act, however, provides that nothing in Principle 11 derogates from any provision in another enactment which authorises or requires personal information to be made available.

It was accepted by the Director that the police report constituted "official information" and that the constable who released it acted in good faith. The issue on the appeal was whether the s48 immunity applied to the release of the police report, which in turn depended upon whether the report was disclosed "pursuant to" the OIA.

The Director argued that, for s48 to apply, the disclosure must have been found to have been required by the Act after applying the competing interests in the particular circumstances. According to the Director's interpretation, it would not be enough that information was released in the honest belief that the OIA required the disclosure, if disclosure were not in fact legally required.

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Decision

The Court rejected the argument for the Director. Section 48, it held, was intended to confer a wide immunity to ensure that officials were not inhibited, by fear of liability, from releasing information. The Tribunal was not required to consider whether the constable correctly applied the OIA, as it is sufficient if he released the report in the honest belief that the OIA required disclosure.

According to the Court, s7(1) of the Privacy Act limits the jurisdiction of the Privacy Commissioner. Where information is released under the OIA, or any other statutory provision which "authorises or requires" the release of information, Principle 11 does not apply. The Commissioner is not permitted to undertake its own qualitative assessment of the facts of the case where such a statutory provision applies.

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Comment

The effect of this decision is that persons in the position of the complainant (who have had personal information about them, which is also official information, disclosed) have no remedy under either the OIA or the Privacy Act. Under the OIA, a decision to withhold information, but not a decision to release information, can be the subject of challenge. The effect of s7(1) of the Privacy Act limits the jurisdiction of the Privacy Commissioner to provide a remedy where the release of information is pursuant to the OIA.

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