TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 383

TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 383 [4 March2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2018-404-001751[2020] NZHC 383UNDER The Human Rights Act 1993BETWEEN ARTHUR WILLIAM TAYLORAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentAND DIRECTOR OF HUMAN RIGHTSPROCEEDINGSFirst IntervenerAND PRIVACY COMMISSIONERSecond IntervenerHearing: 15-16 October 2019Appearances: Appellant in person, together with Ms H O'Neil as McKenziefriendV E Casey QC & A P Lawson for the RespondentS R G Judd for the First IntervenerJ M Hayward and J E Dick for the Second IntervenerJudgment: 4 March 2020JUDGMENT OF GWYN J,AND MEMBERS DEBORAH HART AND WENDY GILCHRISTThis judgment was delivered by me on 04 March 2020 at 3.00pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarIntroduction[1] This appeal relates to a claim pursued originally before the Human RightsReview Tribunal (the Tribunal). The appellant, Mr Taylor, was at the relevant time aprisoner at Auckland Regional Prison, Albany, Auckland. On 5 September 2014 hemade an "everything request"1 of the respondent (Corrections) under informationprivacy principle 6 (principle 6) of the Privacy Act 1993 (the Act) for the period 1August 2014 to 5 September 2014.2[2] Mr Taylor's complaint in the Tribunal was that Corrections interfered with hisprivacy when it responded to the request because it:(a) redacted the names, positions and contact details of Corrections staffmembers appearing in the material provided; and(b) obscured the content of some documents by the application of awatermark "released under the Privacy Act".[3] The Tribunal's first principal conclusion was that the information withheldfrom Mr Taylor was not personal information about him and was therefore notdisclosable under principle 6.3 Its second was that any interference with Mr Taylor'sprivacy by the watermark was trivial in nature, such that it declined to make adeclaration of interference with privacy.4[4] Mr Taylor now appeals the Tribunal's decision. He began with four groundsof appeal but formally withdrew all but one before the matter came to a hearing.[5] That ground is set out in the notice of appeal:The Human Rights Review Tribunal (the Tribunal) erred in determining (atparagraphs [126], [128] and [148.1]) that the information redacted from thatsupplied in response to his [the Appellant's] request for information, madepursuant to s 6, Principle 6, of the Privacy Act 1993 (the Act), via a PCO1form on 5 September 2014 (information Request), was not "personal1 Mr Taylor's request is set out at [10] below.2 Privacy Act 1993, s 6.3 Taylor v Chief Executive of the Department of Corrections [2018] NZHRRT 35 at [148.1].4 At [148.2].information" about the Appellant and consequently there was no interferencewith his privacy as defined in ss 66 (1) and 66 (2) of the Act.[6] Corrections opposes the appeal and has filed a notice to support the decisionon other grounds, being that even if the names and details of Corrections' staffmembers were Mr Taylor's personal information (which it denies) it was neverthelessentitled to refuse disclosure of that information on the basis of it being unwarranteddisclosure of the affairs of another,5 and/or because the information is trivial.6[7] The Privacy Commissioner appeared in the proceedings before the Tribunaland appeared in this appeal as the second intervener. The first intervener, the Directorof Human Rights Proceedings (the Director), appeared in accordance with s 86(1)(b)of the Act. The Privacy Commissioner initially gave notice of his intention to appearand be heard pursuant to s 86(5) of the Act.7 Following the Director giving notice thathe would appear, the Privacy Commissioner applied for and was granted leave tointervene on the basis that the issues raised (particularly the definition of personalinformation) are of importance to the operation of the Act.Approach of this Court on appeal[8] The appellate approach settled by the Supreme Court in Austin, Nichols & CoInc v Stitching Lodestar applies in this case.8 This requires the Court to form its ownview on the relevant issues, having appropriate regard to the conclusions reached bythe Tribunal. The persuasive burden lies on Mr Taylor to persuade the Court that theTribunal decision is wrong.Evidence[9] The Tribunal heard extensive evidence from the sole Corrections witness, MrVincent Arbuckle. Mr Arbuckle's evidence was principally directed to the reasonswhy the names and contact details of staff were properly withheld under s 29(1)(a) of5 Privacy Act 1993, s 29(1)(a).6 Section 29(1)(j).7 That section allows the Privacy Commissioner to appear and be heard where the Director wouldbe entitled to appear and be heard but declines to do so. Where the Director does appear, as in thiscase, the Privacy Commissioner requires leave to intervene.8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.the Act. Mr Taylor, in oral submissions before us, suggested that the Tribunal's findingthat Mr Arbuckle was a "careful, conscientious and credible witness" whose evidencewas "accepted without qualification" was open to review by this Court.9 For reasonsexplained later in this judgment we did not find it necessary to consider that issue.Background[10] On 5 September 2014 Mr Taylor made a request of the Department ofCorrections (the request):10Pursuant to section 6 Principle 6 of the Privacy Act I request copies of all filenotes, incident reports, email traffic other information of any kind in any form,that relates to me, is about myself or mentions refers to me in any way shapeor form, dated since 1 August 2014 – and was created or generated by anyCorrections employee at Auckland Prison (including PM Sherlock) – to thedate this request is completed with warning any extension of the 20 statutoryworking day maximum will be challenged before the Privacy Commissioner– as experience shows this provision is being regularly abused by Corrections.Claim against the Department of Corrections[11] On 8 September 2014 Mr Taylor was told the request would be granted andthat it would be referred to the Ministerial Service Team (MST) at Corrections'National Office in Wellington to action the response.[12] The evidence before the Tribunal was that, from July 2014 until new guidelineswere issued in November 2015, Corrections had a particular practice in responding tosome Act requests.11 For a few offenders who made large numbers of requests and/orwho routinely engaged in time-consuming disputes on the issues involved, MSTprovided active support to the prison or Community Corrections site where theprisoner was based.12 However, MST staff tended to have limited knowledge ofindividual offenders and found it difficult to know whether the disclosure of staffnames should be made (on the basis that the names would be known to the offender)or withheld (on the basis that the disclosure was unwarranted in terms of the staff9 Taylor v Chief Executive of the Department of Corrections, above n 3, at [73].10 The request covered the period from 1 August 2014 to 5 September 2014.11 At [65].12 At [65.2].member's privacy).13 Nor were MST staff in a position to know whether there mightbe a situation of imminent risk of harm to a staff member.14[13] In July 2014, after consultation with the Office of the Privacy Commissioner,Corrections issued a "practice update" to MST staff which provided that, from thatpoint, "all staff names will now be withheld from information released, unless there isa specific request for identifying information, which will be considered on a case bycase basis."15[14] That practice remained in place until new guidelines were issued in November2015, which effectively required case by case consideration for all requests.16 MrTaylor's request was dealt with under the July 2014 practice update.[15] By letter dated 17 November 2014 Corrections provided to Mr Taylor theinformation requested, explaining that some information had been withheld:You will note that some information has been withheld in accordance with thefollowing sections of the Privacy Act:section 29(1)(a) as disclosure of the information would involve theunwarranted disclosure of the affairs of anotherindividual, or of a deceased individual.section 29(1)(f) as disclosure of the information would breach legalprofessional privilege.section 55(e) as information contained in any correspondence orcommunication that has taken place between theoffice of the Commissioner and any agency and thatrelates to any investigation conducted by theCommissioner under this Act, other than informationthat came into existence before the commencement ofthat investigation.[16] The Corrections letter of 17 November 2014 also stated:I trust the information provided is of assistance. Should you have anyconcerns with this response, I would encourage you to raise these concerns13 At [65.5].14 At [65.5].15 At [65.10]. The evidence before the Tribunal was that Corrections discussed its proposedapproach with the Office of the Privacy Commissioner (OPC) and was of the view that the OPCsupported that approach. Subsequently it became clear that the OPC did not.16 At [65.14].with the Department. Alternatively, you are advised of your right to also raiseany concerns to the Privacy Commissioner under section 67 of the PrivacyAct ...[17] The documents provided by Corrections to Mr Taylor were principally emailcommunications between Corrections staff. The Tribunal concluded that "In the main,the documents record routine transactions in the administration of Mr Taylor'ssentence."17 The redacted information comprised the names, positions, titles,telephone numbers and email addresses of the sending and receiving parties (theredacted information).Complaint to Privacy Commissioner[18] Following receipt of Corrections' response Mr Taylor filed a complaint withthe Privacy Commissioner. The Commissioner made a ruling on the complaint,contained in a letter of 5 May 2015 to Corrections. The Commissioner reached theview that the redacted information had been properly withheld under ss 29(1)(f) and55(e) of the Act, but said he had not been satisfied that the redacted information couldnecessarily be withheld under s 29(1)(a) of the Act "in the absence of any specificargument why releasing this particular information would be unwarranted."Tribunal Hearing[19] Mr Taylor then brought a claim to the Tribunal which was heard by the Tribunalon 14–17 March 2018. The Tribunal's decision was released on 31 July 2018.18[20] The Tribunal held that:[148.1] The information withheld from Mr Taylor was not personalinformation about Mr Taylor and was therefore not disclosable under IPP 6;and[148.2] In relation to the documents which were watermarked "ReleasedUnder the Privacy Act 1993", such interference with Mr Taylor's privacy asdid occur was trivial in nature and no declaration of interference with privacyis to be made. Furthermore, as a consequence of subpart 1 of Part 2 of thePrisoners' and Victims" Claims Act 2005, no monetary compensation can beawarded to Mr Taylor.17 At [126].18 Taylor v Chief Executive of the Department of Corrections, above n 3.[21] Because of its conclusion that no personal information had been withheld fromMr Taylor, the Tribunal did not need to address the application of s 29(1)(a) of the Act,including Mr Taylor's argument that Corrections could not apply a "blanket" approachto redactions (under the July 2014 practice update) and was obliged to considerwhether each individual redaction could be justified under the withholding grounds.19Issues on appeal[22] The principal issue on appeal is whether the redacted information was MrTaylor's personal information.[23] Principle 6 of the Act provides:Principle 6Access to personal information(1) Where an agency holds personal information in such a way that it canreadily be retrieved, the individual concerned shall be entitled–(a) to obtain from the agency confirmation of whether ornot the agency holds such information; and(b) to have access to that information.(2) Where, in accordance with subclause (1)(b), an individual is givenaccess to personal information, the individual shall be advisedthat, under principle 7, the individual may request thecorrection of that information.(3) The application of this principle is subject to the provisions of Parts 4and 5.[24] The Act defines "personal information":20personal information means information about an identifiable individual;and includes information relating to a death that is maintained by theRegistrar-General pursuant to the Births, Deaths, Marriages, andRelationships Registration Act 1995, or any former Act (as defined by theBirths, Deaths, Marriages, and Relationships Act 1995)19 At [130]; with Mr Taylor relying on Kelsey v Minister of Trade [2015] NZHC 2497, [2016] 2NZLR 218.20 Privacy Act 1993, s 2.Submissions[25] It was common ground between the parties and the interveners that personalinformation is not limited to "private" or "sensitive" information. Rather, thedefinition is used in the Act in the sense of 'information about a person'. What ispersonal information must be determined in context, on a case by case basis. There isno "bright-line" test as to what is personal information.[26] Beyond that, there was disagreement between Mr Taylor, the PrivacyCommissioner and the Director on the one hand and Corrections on the other as to thebreadth of the definition of personal information and the significance of the accessright provided by Principle 6.[27] We will begin by summarising the relevant submissions of the PrivacyCommissioner, followed by those of Mr Taylor and the Director.21Privacy Commissioner's submissions[28] As mentioned above, the Privacy Commissioner's grounds for seeking leaveto intervene included that the meaning to be given to "personal information" is animportant issue for the operation of the Act.[29] The Privacy Commissioner's written submissions were pitched at a relativelyhigh level. The oral submissions given on his behalf went somewhat further with the(implicit) criticism that, in applying the decision of the majority in Harder vProceedings Commissioner, the Tribunal was adopting a "narrow" interpretation ofpersonal information.22[30] The Privacy Commissioner submitted that the right of an individual to seekaccess to their personal information is "the most significant entitlement" under theAct. He advocated a broad definition of personal information, submitting that would21 Mr Taylor stated he adopted and endorsed the submissions of the Privacy Commissioner in amemorandum dated 19 September 2019, before also filing his own written submissions on 25September and making oral submissions at the hearing.22 Taylor v Chief Executive of the Department of Corrections, above n 3, at [114]–[115]; citingHarder v Proceedings Commissioner [2000] 3 NZLR 80 (CA).align with the text and purpose of the Act, which is a human rights statute.23 TheCommissioner also pointed to the Act being part of New Zealand's freedom ofinformation legislation and open government regime and to the right in s 14 of theNew Zealand Bill of Rights Act 1990 to "freedom of expression, including the freedomto seek, receive and impart information" as supporting a broader approach.[31] There were two broad strands to the Commissioner's approach to the definitionof personal information. First, whether information is about an individual depends onwhether it relates to that individual, in conveying something about them or their rights,obligations and interests, such that there is a sufficient connection in the circumstancesbetween the individual and the information concerned. Whether there is a sufficientconnection turns on the character of the information and the degree and amount ofinsight standing to be conveyed.[32] The second strand makes reference to the reasons why a requester might seekaccess to the information and the uses to which they might put it, both in ensuringcompliance with the Act and in exercising other rights. The Privacy Commissionerexplained that "Providing access to an individual to their personal information mightexplain why a particular action was taken in respect of the individual and acts as anessential precondition to the exercise of complaint rights under the other privacyprinciples, including the right to correction of personal information, the right tochallenge the accuracy of the information, the ongoing retention of the information,the fairness or lawfulness of its collection, and to ensure its lawful use and disclosurewithin the agency that holds it (i.e. as a check on unauthorised disclosures amongstemployees)."24[33] The Commissioner also noted other important uses for access rights beyondthe Act itself, including allowing an initial scoping exercise before initiating litigationand generally supporting individuals' rights to request reasons for decisions affectingthem and make complaints to other bodies including the Human Rights Commission,the Health and Disability Commissioner and the Ombudsman.23 Pointing to Coburn v Human Rights Commission [1994] 3 NZLR 323 (HC) at 333–335.24 Citing Case Note 289320 [2019] NZ PrivCmr 3.[34] The Privacy Commissioner acknowledged that there needs to be a "genuinelink" between the information and the individual and accepted that it is not enoughthat the information in question references the requester. "Personal information" mustbe assessed in the particular context of the request. This includes the circumstancesof the requester, their relationship with the agency concerned (including anyvulnerability or power imbalance), the manner in which the information was collectedor generated and the information's significance to the requester.[35] The Privacy Commissioner submitted that the requirement that information be"about" the requester "is better conceived of as the wide gateway to the Privacy Act,which then provides a variety of mechanisms to ensure that competing interests areappropriately taken into account and liability is limited to meritorious complaints."25In essence, the Commissioner says that, rather than rigorously identify whichinformation is personal information about the requester at the outset, if the informationis considered to be about a person "in a broader sense" agencies should proceed todetermine whether withholding grounds apply rather than "getting stuck at the firsthurdle". The breadth of the definition argued for can, the Commissioner says, bemanaged by the application of the various withholding grounds under ss 27–29 of theAct.[36] Regarding "mixed information" (potentially personal information about morethan one individual) the Commissioner submits that the Tribunal has generally usedthe grounds under s 29(1), rather than definitional issues, to regulate access.26 We notethat Ms Casey, for Corrections, argued that leaving all "filtering" to be done unders 29 may risk depriving agencies of their rights, such as when no withholding groundsapply.Mr Taylor's submissions[37] Mr Taylor adopted the submissions of the Privacy Commissioner and theDirector in respect of the definition of "personal information". He framed the issue in25 Pointing to Katrine Evans "The Expanding Definition of Personal Information" (2017) 77 PrivacyUnbound 11 at 12.26 Making reference to Adams v New Zealand Police [1997] NZCRT 16 at 7; and Director of HumanRights Proceedings v Commissioner of Police, [2007] NZHRRT 34.the following terms: "If there is information on a document sent to me, which relatesto me, that makes it 'about' me. If it's generated because of me, it's my personalinformation."[38] Mr Taylor emphasised that holding public servants (such as Correctionsofficers) accountable is important and the Act may be the only accountabilitymechanism available in some cases. His submission is that allowing officials tooperate anonymously makes establishing whether they are acting within their statutoryauthority (and challenging their decisions) difficult. In his brief of evidence beforethe Tribunal he also noted that redacting staff names and positions makes it difficultto identify how information about him is being spread or communicated.[39] Mr Taylor said that the redacted information related to the Corrections officers'work-related tasks, not their personal capacity. In his submission, knowing the identityof the authors and recipients of the emails is crucial to contextualising and assessingtheir decisions or conduct. For example, without identifiers he would be unable to tellif a lot of reports about him came from one particular officer. He conceded that theofficers' email addresses and phone numbers were less important than their names butargued that withholding even those details risks whittling away the concept of personalinformation.[40] If, as Mr Taylor submitted, the redacted information was his personalinformation, Corrections was obliged to individually assess whether each piece ofinformation could properly be redacted under any of the withholding grounds underthe Act. Mr Taylor says Corrections did not do that. Rather it applied a blanket policy,contrary to law.27 Further, he submits the withholding grounds could not in any eventbe made out.28 There was therefore no proper basis for Corrections' decision towithhold the information and, it follows, an interference with his privacy under s 66of the Act.27 Kelsey v Minister of Trade, above n 19.28 Regarding s 29(1)(a) of the Act Mr Taylor submits that the withheld information did not constitute"affairs" because "affairs" require a course of conduct, event or action, which were not present.This view appears unsupported by recent authorities – see Director of Human Rights Proceedingsv Commissioner of Police, above n 26, at [35]. Mr Taylor further submits disclosure would not be"unwarranted" in terms of lacking a good or sufficient reason, given no reason to opposedisclosure was offered by Corrections at the time.Director of Human Rights Proceedings' submissions[41] On 17 September 2019 the Director filed a memorandum confirming that hesupported the submissions filed by the Privacy Commissioner. Counsel for theDirector also appeared and made oral submissions. As with the Commissioner,Counsel's oral submissions went further than indicated by the written submissions.Counsel did not say that the end result reached by the Tribunal was necessarily wrongbut criticised the "route taken" to that result and concluded that the Tribunal hadmisdirected itself.[42] Like the Privacy Commissioner, the Director proceeded on the basis that theinformation was mixed information and favoured an approach emphasising thebalancing mechanisms within the Act. The definition of personal information shouldscreen out information that is clearly out of scope, but the substantive inquiry shouldoccur at the second stage – whether there are appropriate withholding grounds. TheDirector's submission was that "narrowing" the definition of personal informationwould allow an agency to effectively have two bites of the cherry: it could raise thesame arguments as to definition as in considering the application of s 29(1)(a).[43] At its baldest, the Director's approach was that a communication between Aand B about C is personal information about C. By implication that includes not justthe substance of the communications, but also the identifying details of the sender andrecipient. As the Privacy Commissioner argued in CBN v McKenzie Associates,29 theDirector said that whatever is in a file with the requester's name on it is the requester'spersonal information.Analysis[44] The central question is whether the redacted information was Mr Taylor'spersonal information as that term is used in the Act. If it is not Mr Taylor's personalinformation then it is not necessary for us to go on to consider whether any of thewithholding grounds apply (including whether the alleged "blanket" policy ofredacting all staff details was unlawful)30 and whether, pursuant to s 66(2)(b) of the29 CBN v McKenzie Associates (2004) 8 HRNZ 314 at [33].30 Kelsey v Minister of Trade, above n 19.Act, there was "no proper basis" for Corrections' decision to withhold the redactedinformation.[45] "Personal information" is defined in the Act to mean "information about anidentifiable individual".31 It captures a very wide range of information and is notlimited to information that is particularly sensitive, intimate or private.32 As theSupreme Court observed in R v Alsford, the concept of privacy is contextual and"information which may not appear to be personal or intrusive in the context in whichit is supplied or obtained may well be so in another context."33[46] The interpretation of "personal information" must be guided by the statutoryobjective of the right to access personal information and the purposes of the Actitself.34 The long title to the Act is:An Act to promote and protect individual privacy in general accordance withthe Recommendation of the Council of the Organisation for EconomicCooperation and Development Concerning Guidelines Governing theProtection of Privacy and Transborder Flows of Personal Data, and, inparticular, -(a) to establish certain principles with respect to –(i) the collection, use, and disclosure, by public andprivate sector agencies, of information relating toindividuals; and(ii) access by each individual to information relating tothat individual and held by public and private sectoragencies; andIs principle 6 the "most significant" entitlement under the Privacy Act?[47] Access to personal information is a key accountability mechanism, reflected inits specific inclusion in the long title as one the particular purposes of the Act. ChiefJustice Elias in Alsford described principles 1, 2 and 6 as "central to the scheme ofprotection under the Privacy Act" and said principle 6 "confers on the individual31 Privacy Act 1993, s 2.32 R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [30]; and Watson v Capital & Coast DistrictHealth Board [2015] NZHRRT 27 at [69].33 R v Alsford, above n 32, at [134].34 See Interpretation Act 1999, s 5; and Commerce Commission v Fonterra Cooperative Group Ltd[2007] NZSC 36, [2007] 3 NZLR 767 at [22].concerned an entitlement to confirmation of the information held about him by theagency and to have access to the information and to require correction of errors init."35 The right to access is the only principle directly enforceable against public sectoragencies in the courts.36[48] However, the importance of principle 6 is as part, albeit a significant part, ofthe overall regime of rights, entitlements and obligations under the Act, rather thanconstituting "the most significant entitlement provided under the Privacy Act."[49] That point is important because the definition of personal information is centralto the operation of all but one of the principles in s 6 of the Act. "Personal information"must have the same meaning when an individual seeks to enforce his or her rightsunder any of the other principles and when an agency (which may include smallbusinesses and even individuals, as well as very large government bodies) is called onto comply with any other of the principles. As Corrections put it, "If information isclassified as personal information then it is subject to all these obligations in full." Inthe context of this case, if the redacted information was Mr Taylor's personalinformation as contended, would Corrections require his permission to disclose thenames and identifying details of the prison officers on the emails? Counsel for theDirector suggested that a staff roster that was relevant to Mr Taylor as a prisoner,whom staff would supervise pursuant to the roster, might possibly amount to MrTaylor's personal information. If that were the case, would Corrections need to seekauthorisation from Mr Taylor (and other prisoners) before using that information?The meaning of "personal information"[50] The appellant, the Privacy Commissioner and the Director all advocate for abroad definition of "personal information". The definition of personal informationwas characterised by the Commissioner as a "jurisdictional filter". That suggests adiscretionary tool. But "personal information" is a legal definition that sets theboundaries within which the privacy principles operate.35 R v Alsford, above n 32, at [138].36 Privacy Act 1993, s 11(1).[51] The appellant and the interveners all submitted that complex issues ofinterpretation can be avoided by moving quickly to the second stage of analysis underthe withholding grounds in s 29 of the Act, which provide an adequate balancingmechanism. However, the s 29 withholding grounds apply only to principle 6. Thereis no equivalent mechanism which would allow tempering or narrowing of a broaddefinition when it comes to be specifically applied in the context of other of theinformation privacy principles. This is an important factor which tells against thebreadth of the definition advocated for.[52] Implicitly linked to the submission that the right of access under principle 6 isthe most significant entitlement provided under the Act is the reference by theappellant, the Privacy Commissioner and the Director to the importance of other usesto which personal information obtained under principle 6 might be put.37[53] It is no doubt correct that a very broad interpretation of personal information,enabling access to as much information as possible, may facilitate other valid interests,but the usefulness of the information that may be obtained under a principle 6 accessrequest and the requester's genuine and proper interest in it does not, of itself, renderit personal information. There are separate regimes which address the public interestin ensuring appropriate access to personal information for those purposes. As counselfor the respondent put it, there is no need to put the whole "individual vs statejurisprudence" into the Act. The requester's motivations and the potential uses of theinformation do not supplant the statutory objectives of the right and the purposes ofthe Act itself.38Freedom of information regime[54] The Privacy Commissioner submitted that the definition of "personalinformation" should be given a broad reading in part because the Act is part of NewZealand's freedom of information legislation. The entitlement of an individual to37 Some of these are set out above at [33].38 The United Kingdom Court of Appeal observed that the right to access personal data enables anindividual to assess whether their privacy is being unlawfully infringed upon, rather than being an"automatic key to information" for any purpose, such as discovery to support complaints againstthird parties, and that whether information is personal information must be assessed on a"continuum of relevance" in Durant v Financial Services Authority [2003] EWCA Civ 1746,[2004] FSR 28 (UKCA) at [27]–[28].request access to their personal information was previously contained in the OfficialInformation Act 1982 and continues to be for legal persons.39 However, as therespondent noted, the right to access the freedom of information regime is not affectedby the breadth or narrowness of the definition of personal information. The definitionaffects only which statute the requester proceeds under. We agree that there is noreason to expand the meaning of personal information to enhance or protect the rightsof access to information held by state agencies.Section 14 Bill of Rights Act[55] A further basis for the Commissioner's support for a broad interpretation ofpersonal information was that it supports the right to freedom to seek and receiveinformation under the New Zealand Bill of Rights Act.40 We agree with the respondenton this point too: s 14 of the Bill of Rights Act has no role in supporting an expandeddefinition of personal information. The respondent relied on The New Zealand Bill ofRights Act, A Commentary:41The right to receive information prevents the state from restricting a person fromreceiving information that others may wish or be willing to impart to her or him. So,for example, the state is prohibited from standing between a speaker and his or heraudience since each has the right of access to each other.In summary, the ECtHR position is that art 10 [the equivalent to s 14] embodies aright not to be impeded in one's efforts to access public information. There may alsobe an obligation on states to facilitate access to information that is not readilyavailable. However, freedom of expression does not entitle the individual to haveaccess to information held specifically about him or her. Those cases in the ECHRcontext generally trigger art 8 of the ECHR (the right to family life and privacy).[56] Further, s 14 of the Bill of Rights Act applies only to acts done by the state orthe agencies that fall within s 3 of the Bill of Rights Act. The private sector agenciesand individuals subject to disclosure obligations under the Privacy Act will notgenerally be covered by s 3.39 Official Information Act 1982, s 24.40 New Zealand Bill of Rights Act 1990, s 14.41 Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [13.7.45] and [13.7.51] (emphasis added).Section 14 Privacy Act[57] The Privacy Commissioner was critical of the Tribunal's references to s 14 ofthe Privacy Act, arguing that recourse to s 14 is unnecessary to discern whetherinformation is "about" an individual.42 We do not read the Tribunal's references aspurporting to do that. Rather, the Tribunal refers to s 14 simply as a recognition in theAct of other rights and interests that must be taken into account.[58] It is clear that the Act does not place any onus on a requester to explain themotive or reasons for an access request and we do not take the Tribunal to be sayingotherwise. However, as the parties and the interveners agreed, what is personalinformation must be interpreted in the context of the particular access request. Weagree with the Tribunal that there will be cases where the agency dealing with therequest may have little contextual information to assist it in identifying all of therequester's personal information.43 While there is no onus on a requester to providethat context, nor is it for the responding agency to speculate as to the context. Where,without further context, it is not plain that the information requested is the requester'spersonal information, he or she risks the request being declined."Mixed information"[59] All of Mr Taylor, the Privacy Commissioner and the Director approached theissues on the basis that the information sought (being the unredacted communications,including the names and identifying details of Corrections officers) was mixedinformation, combining information about Mr Taylor with information about otherindividuals (Corrections staff). They relied on cases in which the personal informationof two or more people was inextricably intertwined, such that the agency in questioncould not deal with a request for the personal information of one without dealing withthe other(s).44 They contended that in such cases s 29(1)(a) is the "primary regulator",42 Taylor v Chief Executive, Dept of Corrections, above n 3, at [90] and [107].43 At [81.4] and [99]–[101].44 Case Note 232613 [2012] NZPrivCmr 7 (September 2012); Case Note 229963 [2011] NZPrivCmr9; Case Note 208123 [2010] NZPrivCmr 12l; Case Note 80156 [2005] NZPrivCmr 2; Case Note17375 [1997] NZPrivCmr 6; Adams v New Zealand Police, above n 26; and Director of HumanRights Proceedings v Commissioner of Police, above n 26.and a more appropriate point to address whether to provide access than the initial stageof determining what is personal information.45[60] We agree with the respondent that this case does not involve intermingling ofinformation in that substantive sense. Rather, the information that is plainly MrTaylor's personal information merely appears on the same page as the redactedinformation (the personal information of the Corrections officers). The two are notintertwined and the material provided to Mr Taylor is not rendered unintelligible byreason of the redactions. On that point the Tribunal said that "Having ourselvesexamined the open and closed versions of the disclosed documents we are of thefurther view the redactions did not have the effect of making the substantive contentof the documents unintelligible."46 The members of this Court also had the benefit ofexamining both the open and closed versions of the disclosed documents and we agreewith the Tribunal's conclusion on this point.[61] The authorities on "mixed information" relied on by the appellant and theinterveners do not assist in this case. Most of the cases cited to us involved situationswhere information was clearly about more than one person, such as comparisonsbetween the complainant and other individuals in an assessment process, or the nameof an informant who had provided information about the complainant to a lawenforcement or decision-making body.4745 O v N (No 2) [1996] NZCRT 4 at 15.46 Taylor v Chief Executive of the Department of Corrections, above n 3, at [126].47 Director of Human Rights Proceedings v Commissioner of Police, above n 26, and O v N (No 2),above n 45, both dealt with complainants who sought to learn the identities of specific 'informants'who had provided evidence or information adverse to them. While in both cases the identity of theinformant was treated as personal information, we consider that necessarily limited to theparticular facts of the case, because the identity-information existed in relation to the specificallegations made against the complainants.Naidu v Royal Australasian College of Surgeons [2018] NZHRRT 23 involved a complainant whounsuccessfully applied for entry into orthopaedic surgery training. The respondent refused todisclose the mechanism by which his score had been calculated for assessing his application. TheTribunal held that, while it was not personal information, the mechanism's provision was acondition precedent to being able to access the complainant's personal information. That is notanalogous to this case – Mr Taylor does not require the redacted details to understand what he hasalready been provided.CBN v McKenzie Associates, above n 29, involved a complainant's access to his former lawyer'sfile, which included a number of kinds of information, including information about thecomplainant's former wife and particulars of her life, alongside information about thecomplainant. The Tribunal expressed reservations about whether the potential for information tobecome relevant to a person converted it into personal information about that person. Thosereservations were confirmed when Mr Taylor made a similar argument at the Tribunal, which was[62] Having reached the view that the unredacted information in this case is not"mixed information", an important part of the logic of Mr Taylor's, the PrivacyCommissioner's and the Director's argument that the Court should go straight to s 29,rather than labouring over what is encompassed within the definition of personalinformation, falls away.Conclusions[63] We agree with the Tribunal that the question of whether information is aboutan identifiable individual requires that the word "about" be given appropriatecontent.48 We do not see the Tribunal's decision as reading down or narrowing thedefinition of personal information, but rather giving a meaning to what is a legaldefinition.49[64] The meaning given to the words "about an individual" must make sense in thecontext of all the privacy principles, not just principle 6. It is no answer to thedifficulty in fixing on a definition to say that recourse can be had to other mechanismsin the Act to calibrate privacy and other interests, particularly when those othermechanisms – specifically the withholding grounds in s 29 of the Act – apply only toprinciple 6.[65] Ultimately in this case, as in the other cases cited to us, what is Mr Taylor'spersonal information comes down to an examination of the particular information inthe particular context. The substance of the information sought by Mr Taylor wasprovided to him: "all file notes, incident reports, email traffic other information of anykind in any form, that relates to me, is about myself or mentions refers to me in anyway shape or form". The information which was redacted, while appearing on thesame pages as Mr Taylor's personal information, was not "about" him. It wasessentially administrative information. Nor did its omission render thecommunications unintelligible.discussed and dismissed: Taylor v Chief Executive of the Department of Corrections, above n 3,at [120]–[122]. We also share those reservations.48 Taylor v Chief Executive of the Department of Corrections, above n 3, at [83].49 Consistent with the Court of Appeal's caution against an "unqualified approach" in Harder vProceedings Commissioner, above n 22, at [23].[66] We have reached the following conclusions.(a) First, we are satisfied that the redacted information was not Mr Taylor'spersonal information and was therefore not disclosable by Corrections.(b) Second, because of the view we have reached on the first question, ithas not been necessary for us to go on to consider whether any of thewithholding grounds applied. We find there was no interference withMr Taylor's privacy under s 66 of the Act.[67] Accordingly, the appeal is dismissed.Costs[68] Generally, the successful party in a proceeding is entitled to reclaim costs.Here that party is Corrections. This position is not changed by the fact that Mr Tayloris a litigant in person, nor by arguments around his ability to pay. However, we notethat Hinton J, in the context of an application to waive security for costs, observed thatthe ground of appeal which this judgment determines appeared to involve a questionof public interest, in respect of which costs were unlikely to be awarded regardless ofthe outcome.50 Rule 14.7(e) of the High Court Rules 2016 allows for a refusal of orreduction in costs where "the proceeding concerned a matter of public interest, and theparty opposing costs acted reasonably in the conduct of the proceeding".[69] While Mr Taylor has not succeeded in changing the law, we consider the issueshis case touches have relatively broad relevance. Our preliminary view is that costsmay appropriately therefore lie where they fall, including in respect of the PrivacyCommissioner and the Director.51 If the parties do not agree, Corrections may file amemorandum within 10 days, following which the other parties will have a further 10days in which to file their memoranda in response.50 Taylor v Chief Executive of the Department of Corrections [2019] NZHC 644 at [41].51 Subject to s 86(4) of the Privacy Act 1993.______________________Gwyn J/Ms Gilchrist/Ms HartCounsel/Solicitors:V E Casey QC, WellingtonCrown Law, WellingtonDirector of Human Rights Proceedings, AucklandOffice of the Privacy Commissioner, WellingtonCopy to:A W Taylor