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25 November 2008
In Director of Human Rights Proceedings v Commissioner of Police(1) the High Court had to resolve the inherent conflict between the aims of the 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 construed both acts and ruled that the former prevails over the latter.
In March 2002 the police were called to a domestic violence incident involving the complainant and her new partner. The complainant's 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 the persons present and the action taken.
Over a year later, the children told their father about the incident. The complainant denied that the incident had occurred, as she feared that the information would be used against her in a pending Family Court custody proceeding. The father applied to the police for information under the Official Information Act. The police provided him with a copy of the report in the belief that, as the father of the children involved, he was entitled to it. 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 such information, except in certain specified circumstances. She brought proceedings against the police for compensation for emotional harm suffered as a result of the disclosure.
The Human Rights Tribunal dismissed her claim, although the court later found that its reasons for doing so were unclear. 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 Official Information Act.
Section 48 of the Official Information Act provides immunity from civil and criminal liability where information is released in good faith pursuant to the act.
The Privacy Act sets out various principles relating to personal information. Principle 11 prohibits the release of personal information, except in limited circumstances. However, Section 7(1) states that this principle does not derogate from any provision in another enactment which authorizes or requires personal information to be made available.
The director accepted that the police report constituted official information and that the officer who released it had acted in good faith. The issue on appeal was whether the Section 48 immunity applied to the release of the police report, which in turn depended upon whether the report was disclosed pursuant to the Official Information Act.
The director argued that in order for Section 48 to apply, disclosure must be found to have been required by the act after applying the competing interests in the particular circumstances. According to the director’s interpretation, where disclosure is not legally required, it is not enough that information was released in the honest belief that the act required such disclosure.
The court rejected the director's argument. It held that Section 48 was intended to confer wide immunity to ensure that fear of liability does not inhibit officials from releasing information. The tribunal was not required to consider whether the officer correctly applied the act; rather, it would be sufficient for the officer to have released the report in the honest belief that the act required disclosure.
The court found that Section 7(1) of the Privacy Act limits the jurisdiction of the privacy commissioner. Where information is released under the act - or any other statutory provision which “authorizes or requires” the release of information - Principle 11 does not apply. The privacy commissioner is not permitted to undertake a qualitative assessment of the facts of the case where such a statutory provision applies.
Persons in the complainant's position - that is, individuals whose personal information is also official information and is disclosed as such - have no remedy under either act. Under the Official Information Act, a decision to withhold information may be subject to challenge, but a decision to release information may not. The effect of Section 7(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 Official Information Act.
For further information on this topic please contact Chris Browne or Felicity Monteiro at Wilson Harle by telephone (+64 9 915 5700) or by fax (+64 9 915 5701) or by email (firstname.lastname@example.org or email@example.com).
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