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Privacy Act 1993

Recent Decisions of the Human Rights Review Tribunal and the Courts Tim McBride. Privacy Act 1993. HRRT. Recent Trends – Volume & Type Parties – represented / unrepresented Pre-hearing rulings Discovery / inspection Jurisdiction Decisions – quality / length Remedies & Awarding of costs

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Privacy Act 1993

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  1. Recent Decisions of the Human Rights Review Tribunal and the Courts Tim McBride Privacy Act 1993

  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 HRRT’s 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 HRRT’s 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 denovo ... (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

  9. 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 vRichardson (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

  11. 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 Commissioner’s 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 PC’s 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. Tribunal’s 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 individual’s complaint That position challenged in Lehmann (20/05)

  15. Tribunal’s jurisdiction to hear cases under Privacy Act (ctd) By a defendant? No, by the PC PC’s 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 ManurewaRSA 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 plaintiff’s 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?

  19. 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

  21. 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 informant’s identity refused Section 27(1)(a) applied Dept’s decision upheld by HRRT & on appeal by HC HC held that the Dept’s ‘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 plaintiff’s privacy)? Wording of s66 (1) + (2) CRT decisions HRRT decision in Jans v Winter (21/03)

  24. 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)

  25. 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)

  26. 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

  27. 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

  28. 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)

  29. 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)

  30. 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)

  31. Recent costs awards against unsuccessful plaintiffs Ram (27/03) - $3,000 CD (15/02) - $10,000 O’Neill (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

  32. Tim McBride Barrister & Legal Consultant timmcbride@xtra.co.nz Conclusion

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