DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V COMMISSIONER OF POLICE HC CHCH CIV-2007-409-002984

DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V COMMISSIONER OF POLICE HC CHCH CIV-2007- 409-002984 14 August 2008ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE COMPLAINANT, HER CHILDREN, OR THE FATHER OF HER CHILDREN. IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2007-409-002984UNDER the Human Rights Act 1993 AND UNDER the Privacy Act 1993 IN THE MATTER OF an appeal against a decision of the Human Rights Review Tribunal pursuant to s123(2) of the Human Rights Act 1993 BETWEEN DIRECTOR OF HUMAN RIGHTS PROCEEDINGS Appellant AND COMMISSIONER OF POLICE Respondent Hearing: 17 June 2008 Coram: French J (Presiding) D Clapshaw GJA Kerr Appearances: R B Stevens for Appellant A L Martin and C Richardson for the Respondent Judgment: 14 August 2008JUDGMENT OF THE COURT DELIVERED BY FRENCH J[1] This is an appeal under s123(2) of the Human Rights Act 1993 against a decision of the Human Rights Appeal Tribunal ("The Tribunal"). [2] The appeal has been brought by the Director of Human Rights ("The Director"). It raises what are said to be novel and important issues about the interface between the Privacy Act 1993 and the Official Information Act 1982.Factual background[3] The case concerns the police handling of a request for personal information (ie information about an identifiable individual), in circumstances where the information being requested was not about the requester but about someone else. [4] The factual background was as follows. [5] In March 2002, police officers were called to a domestic violence incident involving the complainant and her new partner. The complainant's children were also present. Police temporarily removed the complainant and the children from the home. The complainant did not want the partner charged, and the matter was dealt with by way of a formal caution. In accordance with standard practice, one of the police officers (Constable Tweedie) subsequently completed a form, known as a POL 400 Family Violence Report, recording the details of the incident, including who was present and what was done. The report was completed in triplicate: one copy despatched to the Police National Intelligence Section Agency for noting, a second copy despatched to a section of the police that deals with family violence, while the third copy was retained at the local police station. [6] Over a year later, in July 2003, the children told their father about the incident. He sought clarification from the complainant but she, fearful that he would use the incident against her in a pending Family Court case about custody, denied anything had happened. Having failed to elicit any information from the complainant, the father then approached the police, informed them he knew an incident had occurred involving his children, and requested a copy of the police report. The father gave the approximate date of the incident and the names of the parties involved. [7] The police advised the father he would need to make a written application for release of the information. He subsequently obtained a form from the central police station in Christchurch, completed it and sent it back into the police. [8] The form that was supplied was headed "Application for Information – Official Information Act 1982". The father completed it in the following terms:Could I please have a copy of the police report associated with this call out and incident. I understand there was an assault by [Mr X] on [Ms Y] witnessed by my children. I understand that there should be a full report with findings compiled by the police. Thank you in advance. [there is a Court order suppressing the real names of the partner and the complainant][9] The father's application was forwarded to Constable Tweedie for consideration. Constable Tweedie decided to release the report, and a copy was duly made available to the father. [10] The complainant alleged this disclosure constituted a breach of Principle 11 of s6 of the Privacy Act. Through the Director, she then brought proceedings against the police under the Privacy Act seeking compensation for the emotional harm she had suffered as a result of the report being released. [11] Principle 11 prohibits an agency that holds personal information from disclosing it to anyone except in certain specified circumstances. [12] In defending the claim, the police relied principally on s48 of the Official Information Act, and also s7(1) of the Privacy Act. Section 48 confers an immunity from civil and criminal liability where information is released pursuant to the Official Information Act in good faith. Section 7(1) of the Privacy Act is a savings provision to the effect that nothing in Principle 11 derogates from any provision in another enactment which authorises or requires personal information to be made available. [13] At the hearing before the Tribunal, Constable Tweedie testified he had no specific recollection of processing the request in issue but stated: I believe I would have released the POL 400 on the strength of the information on the request form. I would not have released a copy of the POL 400 unless a request for the information was received by Police on the form used for that purpose. Under the circumstances I believe that as thefather of the children, [the father] was entitled to a copy of the POL 400. I believe that I concluded that due to the information [the father] already had the privacy interests of the parties were minor and that the POL 400 must be released.[14] Constable Tweedie also said in evidence that in processing the father's request, he understood he was required to consider the privacy interests of the individuals concerned against the public interest that would be met through release of the information.The Tribunal's decision[15] The Tribunal dismissed the claim. It did so for reasons which the Director submits are not entirely clear. [16] The Court agrees the decision is somewhat unsatisfactory from that point of view. However, at least the following seems clear: (i) The Tribunal found Constable Tweedie had received and "dealt with" the father's request under the Official Information Act 1982. (ii) The Tribunal regarded that finding as a finding of fact. (iii)In reaching that finding, the Tribunal relied on Constable Tweedie's evidence and the heading on the request form ("Application for Information – Official Information Act 1982"). (iv) The finding was held to mean the Tribunal had no jurisdiction to consider the claim, "we have no business dealing with issues that emerge under [The Official Information Act 1982]" (at [26]). (v) The finding also meant it was unnecessary to consider whether the exception in Principle 11(e)(iv) of the Privacy Act mighthave been available to the police (non-compliance with Principle 11 necessary for the conduct of proceedings before the Court – in this case the Family Court). (vi) If the Tribunal had reached the stage of trying to assess damages, the complainant would have struggled to satisfy the Tribunal her emotional harm had been caused by the release of the report. [17] The Tribunal did not specifically say why its finding (at [23]) "the police received and dealt with the request under the Official Information Act" meant it had no jurisdiction – in particular, did not clearly articulate whether it was relying on s7(1) of the Privacy Act, or s48 of the Official Information Act, or both. [18] At the appeal hearing, the Director submitted s7 must be taken as the unspoken basis of the Tribunal's decision. However, the Court is not convinced of that and so proposes to consider both provisions, dealing first with s48 of the Official Information Act.Section 48 Official Information Act 1982 Grounds of Appeal[19] As explained to the Court, the Director's main objective in bringing this appeal is to obtain clarification about the interface between the Privacy Act and the Official Information Act; in particular clarification as to the scope of s48 of the Official Information Act and s7(1) of the Privacy Act. [20] Of the two statutes, the Official Information Act was of course enacted first. Its stated purpose is to make official information (ie information held by specified public agencies which may include personal information) more freely available, while a primary purpose of the Privacy Act is to protect personal information from disclosure.[21] The scheme of the Official Information Act is that anyone is entitled to make a request of a specified agency for information it is holding, and that on receipt of a request the agency can only withhold the requested information on a limited number of grounds. Significantly, while a decision to withhold the requested information can be the subject of a complaint under the Official Information Act to the Ombudsman, there is no equivalent complaints procedure under the Act about a decision to release information which should have been exempt from disclosure. This means if the Tribunal is correct, a person in the position of the complainant has no remedy under either the Official Information Act or the Privacy Act. [22] The main thrust of the Director's appeal was essentially that the Tribunal misinterpreted s48, and accordingly was wrong to decline jurisdiction. [23] Section 48 provides:48 Protection against certain actions(1) Where any official information is made available in good faith pursuant to this Act,— (a) No proceedings, civil or criminal, shall lie against the Crown or any other person in respect of the making available of that information, or for any consequences that follow from the making available of that information; and (b) No proceedings, civil or criminal, in respect of any publication involved in, or resulting from, the making available of that information shall lie against the author of the information or any other person by reason of that author or other person having supplied the information to a Department or Minister of the Crown or organisation. (2) The making available of, or the giving of access to, any official information in consequence of a request made under this Act shall not be taken, for the purposes of the law relating to defamation or breach of confidence or infringement of copyright, to constitute an authorisation or approval of the publication of the document or of its contents by the person to whom the information is made available or the access is given.[24] The Director accepted the POL 400 report constituted "official information". [25] He also accepted Constable Tweedie had acted in good faith. The Constable acted honestly and without any ulterior motive (Ilich v Accident Rehabilitation and Compensation Insurance Corporation [2000] 1 NZLR 380; X v Attorney-General[1994] NZFLR 433; Central Estates (Belgravia) Ltd v Woolgar [1972] 1 QB 48, [1971] 3 All ER 647). [26] However, what the Director did not accept was that the report had been made available "pursuant to" the Official Information Act so as to bring the immunity into play. Or to put it another way, the Director did not accept the Tribunal had conducted a sufficient inquiry so as to be able to properly satisfy itself the information had been made available pursuant to the Act. What the Tribunal found was that the request had "been dealt with" under the Official Information Act. It was unclear exactly what the Tribunal meant by that. [27] At the heart of the argument is an issue about the true meaning of the phrase "pursuant to". [28] According to the Director's interpretation, "pursuant to the Act" means "in accordance with the requirements of the Act", or "authorised by the Act". In order for the statutory immunity to attach, it was therefore not enough that: (a) the disclosure was made in response to a request expressly made under the Act; nor that (b) the Act may have been cited in disclosing the information; nor that (c) Constable Tweedie released the report in the honest belief the Official Information Act required disclosure. [29] What the Director says was required was for Constable Tweedie to have first correctly identified the relevant interests (ie the interests requiring protection and those favouring disclosure in the public interest), and then considered those competing interests in good faith before coming to a decision. Then, and only then, could he be said to have released the report "pursuant to" the Act. [30] The Director stopped short of saying "pursuant to" meant the decision to release had to be the correct one, ie "justifiably made available in terms of the Act".The Tribunal was therefore not required to determine the substantive correctness of Constable Tweedie's decision. It was, however, required to examine his decision- making process. [31] In the Director's submission, had the Tribunal conducted a proper factual inquiry, it would have concluded the report had not been made available pursuant to the Official Information Act. This was because the Constable's reasoning processes did not conform to those contemplated by the Act. If anything, the Constable appeared to have employed the terminology of the Privacy Act. There were no public interests favouring disclosure, and he had taken an irrelevant factor into consideration – namely, that the requester was the children's father. Under the Official Information Act, decisions are not dependent on the identity of the requester. [32] It followed the Tribunal erred in stating, as it did at [23]:It is not really for us to say whether in [dealing with the request] [the police] applied the relevant elements of the OIA correctlyAccording to the Director, it was very much a matter for the Tribunal – at least in the sense of determining whether the constable correctly turned his mind to all the relevant elements and excluded any irrelevant considerations. As counsel put it, "if you don't turn your mind to the Act, how can you said to be giving information pursuant to it?" In the Director's view, Constable Tweedie relied on notions that are not part of the Official Information Act and was "so wide off the mark" he could not possibly have been acting pursuant to the Act. [33] In support of his interpretation of s48, the Director made the following points: (i) The words "pursuant to" must mean something. They were inserted for a reason and the Court should give them some meaning. (ii) The Director's interpretation is supported by Part E of the Ombudsmen's Practice Guidelines. Part E is headed Common Misconceptions. Its stated purpose is to complement thegeneral guidelines on how to apply the official information legislation properly, with examples of misconceptions that usually result in unnecessary and avoidable expenditure of time and effort. One of the misconceptions cited is "Releasing the requested information will expose the agency to civil or criminal proceedings". Underneath that is a reference to s48 and a statement:So long as the agency has made reasonable efforts to identify the interests requiring protection and the considerations favouring disclosure of the information in the public interest and has considered those interests in good faith, release of the information under the OIA will not expose the agency to civil or criminal proceedings(iii)As a matter of policy, s48 should not be interpreted so broadly as to render privacy rights completely nugatory and deprive a person in the complainant's position of the remedy to which she is entitled under the Privacy Act. [34] For their part, the police submit Part E of the Ombudsmen's guidelines does not accurately capture s48 and goes beyond what is required in order to attract the immunity. Further, that in any event on the facts the Ombudsmen's guidelines were met in this case because, contrary to the Director's submissions, there was a public interest in disclosure of the report and Constable Tweedie made the right decision. The report was not exempt from disclosure. Certainly, the Tribunal appeared to think so, saying at [23]: given that much of the information was obviously already known to the father and that the information related to issues potentially affecting the safety of his children, we think it would have been surprising if Constable Tweedie had decided not to release the POL 400 to the father.The Court's view[35] There are a number of authorities which have considered the meaning of the phrase "pursuant to" in the context of other statutory provisions. See for exampleDavidson v Ross and Attorney-General [1996] 3 NZLR 340 at 346, where the phrasewas used in connection with the Children, Young Persons, and Their Families Act 1989. In considering what was meant by "pursuant to", Kerr J reviewed dictionary definitions and overseas case law, identifying various possible meanings including "in accordance with", "under", "authorised by" and "in carrying out". See alsoReihana v Director-General of Social Welfare HC Christchurch, AP24-02, 25 September 2002 at [24] where William Young J defined the phrase as being "Consequent and conforming to; in accordance with". [36] In Davidson, the Court also referred to Australian authority where it was held that acts in supposed pursuance of a statutory provision may be contemplated by the phrase "in pursuance of" (Groves v Groves [1944] SASR 187; Hamilton v Halesworth (1937) 58 CLR 369). [37] We have found these various authorities useful, but ultimately of limited value because of the different statutory framework. [38] What we consider more significant is the fact the words "pursuant to" did not appear in s48 when the Official Information Act was originally enacted. At that time, the section read as follows:48 Protection against certain actions(1) Where any official information is made available in accordance with this Act,— (a) No action for defamation, breach of confidence, or infringement of copyright shall lie against the Crown or any other person by reason of the making available of that information; and (b) No action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the making available of that information shall lie against the author of the information or any other person by reason of that author or other person having supplied the information to a Department or Minister of the Crown or organisation. (2) The making available of, or the giving of access to, any official information in consequence of a request made under this Act shall not be taken, for the purposes of the law relating to defamation or breach of confidence or infringement of copyright, to constitute an authorisation or approval of the publication of the document or of its contents by the person to whom the information is made available or the access is given.[39] In 1987, the phrase "made available in accordance with this Act" was replaced with "made available in good faith pursuant to this Act" (s21 Official Amendment Act (1987 No 8)). [40] The 1987 amendment also affected a number of other changes to s48, all of which were clearly designed to widen the scope of the immunity. [41] That liberalisation was the intention of the changes (including the change to "pursuant to") has been expressly confirmed by the Court of Appeal in Attorney- General v Davidson [1994] 3 NZLR 143 at 146. [42] Attorney-General v Davidson concerned an argument over release of certain personal information (psychologist's filenotes about the requester) held by the Department of Social Welfare. There was a statutory exemption under s6(c) which would possibly have justified the Department in withholding the information on the basis disclosure would prejudice the maintenance of the law. Significantly, during the course of its judgment, the Court of Appeal made the following observations at 147:Be that possibility as it may, as far as this Court is aware neither s 6(c) nor any other ground of exemption was raised by the Department of Social Welfare when the plaintiff requested personal information held about him by the Department. There has been no suggestion that the Department did not make the file notes available to the plaintiff in good faith and "pursuant to this Act". The latter phrase in the opening of s 48 must we think apply even if the Department could have successfully invoked, but did not invoke, one of the statutory grounds of exemption. [emphasis added][43] We accept the comment made by the Court of Appeal was obiter. However, emanating as it does from the Court of Appeal, it must obviously carry weight. Clearly, the fact the Department failed to turn its mind to all relevant factors was not seen as something which would deprive it of the benefit of the immunity. [44] In our view, that accords with the language used in s48 and gives effect to the legislative intention to confer a wide immunity as evidenced by the 1987 amendment. In our view, it also accords with the policy of the Official Information Act. The purpose of the immunity is to ensure officials are not inhibited from releasing information. In our view, the Director's interpretation would have aninhibiting effect and would undermine the benefit of the immunity. It would also have the potential to create arguments about the process that was adopted - witness the divergent views of the Director and the Police about public interest in the present case. An immunity provision needs to be straightforward, and provide a clear-cut test readily understood and readily applied. [45] We acknowledge this means we are arguably departing from the Ombudsmen's guidelines, but they remain a statement of good practice rather than a legal ruling on the scope of s48. [46] We acknowledge, too, the policy argument about the need for a remedy for people such as the complainant in this case. However, had Parliament intended the situation to change when it enacted the Privacy Act, it could easily have amended s48 again and allowed the newly created privacy rights to prevail. Yet it did not. [47] It follows, in our judgment, that for the purposes of s48, the Tribunal was not required to consider whether Constable Tweedie correctly applied the Official Information Act with reference to either his reasoning processes or the correctness of his ultimate decision. What was sufficient was the Constable released the report in the honest belief the Act required disclosure. The immunity therefore applied and no claim under the Privacy Act was possible.Section 7 of the Privacy Act[48] We turn now to consider the Director's submissions concerning s7(1) of the Privacy Act. [49] Section 7(1) provides:Nothing in principle 6 or principle 11 derogates from any provision that is contained in any enactment and that authorises or requires personal information to be made available.[50] The Director accepts this section means other provisions contained in other enactments such as the Official Information Act may "trump" Principle 11. However, according to the Director's interpretation, s7(1) required the Tribunal toestablish as a matter of fact and law that in the circumstances of this case the Official Information Act did indeed authorise or require the information in question to be made available to the father. [51] Or to put it another way, the question the Tribunal should have asked itself was not "was this an application under the Official Information Act?" but rather "does the Official Information Act authorise or require this report to be made available?" Instead of washing its hands of the matter by saying it had no jurisdiction to deal with cases concerning official information under the Official Information Act, the Tribunal was thus obliged to review the quality of Constable Tweedie's decision making process and inquire whether he did apply the several tests and balances under the Official Information Act. Only then could it determine whether "the test" under s7(1) was satisfied. [52] We respectfully disagree. In our view, if the Privacy Act was intended to confer a jurisdiction on the Tribunal to review the quality of an agency's exercise of its discretion under the Official Information Act, it would have said so expressly and not in such an oblique fashion. As submitted by the police, s7 is a provision clearly intended to delimit the jurisdiction of the Privacy Commissioner, the Director and the Tribunal, not provide an alternative or additional basis for review of decisions made under the Official Information Act over and above that provided by the Ombudsman. [53] In our view, the phrase "authorises and requires" 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. [54] We are reinforced in this conclusion by reference to the fact the Director's interpretation would potentially result in the Tribunal having to apply the provisions of other enactments which may be completely outside its own expertise. That cannot have been Parliament's intention.[55] It follows in our view, it was open to the Tribunal to find this case was governed solely by the provisions of the Official Information Act and that Principle 11 did not therefore apply. [56] Our view of the two statutory provisions means it is not necessary for us to consider the factual issue of causation between breach and harm. Suffice it to say, we share some of the same reservations as the Tribunal.Outcome of appeal[57] Whether the Tribunal was relying on s48 of the Official Information Act or s7(1) of the Privacy Act, or both, we are satisfied, that by whatever route, it reached the right outcome. The complainant's claim could not succeed. [58] Appellate intervention is not justified and the Director's appeal is accordingly dismissed.Costs[59] Subject to any submissions the parties may wish to make, our provisional view is this was a test case and costs should lie where they fall. [60] In the event counsel are unable to agree and an award of costs is sought, then we require submissions on costs to be filed within 14 days.Solicitors: R Stevens, Devonport Crown Law, Wellington