M v THE COMMISSIONER OF POLICE [2018] NZHC 615

M v THE COMMISSIONER OF POLICE [2018] NZHC 615 [9 April 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-000386[2018] NZHC 615BETWEEN MPlaintiffAND THE COMMISSIONER OF POLICEDefendantHearing: 7 February 2017Appearances: P J Shamy for the PlaintiffV McCall for the DefendantJudgment: 9 April 2018JUDGMENT OF DUNNINGHAM JIntroduction[1] This case concerns the operation of the New Zealand Police Vetting Service.As was noted in a recent review of the Vetting Service, it is "perhaps not widelyunderstood that the vetting process involves more than simply notifying of thepresence or absence of a criminal conviction".1 The Police will sometimes haveinformation that does not relate to criminal offending, or which has not been tested bythe Court or otherwise independently verified, and this material can be very prejudicialto the individual concerned. When responding to a vetting request, difficult issues canarise in balancing the need to protect vulnerable members of society against theprivacy interests of the individual being vetted.1 The Police Vetting Service: A joint review by the Independent Police Conduct Authority and theOfficer of the Privacy Commissioner (October 2016) (Joint Review) at [2].[2] That is precisely the issue that has arisen in this case. The Vetting Servicedecided to release prejudicial information about the plaintiff to the New Zealand FireService. As a result, the Fire Service declined the plaintiff's application to join thatorganisation as a volunteer. The plaintiff now challenges the Vetting Service'sdecision to release that information. He says the decision was unlawful, unreasonable,and did not comply with the principles of natural justice. He seeks declarations to thateffect and a declaration that, in the future, the information is only to be used for Policeinvestigative purposes and may not be disclosed to third parties.[3] The issues for determination are:(a) whether the decision to release information about allegations madeagainst the plaintiff to the Fire Service in the circumstances that arosewas erroneous in any of the ways alleged by the plaintiff, and(b) if so, what declaratory relief, if any, should be granted?Factual background[4] In November 2013, the Police received a complaint of indecent assault inrelation to the plaintiff. The complainant was a female cousin of the plaintiff(complainant A), who was then aged 16, but who claimed the assaults took place whenshe was much younger. The matter was assigned to the Child Protection Team but,initially, complainant A did not wish to be evidentially interviewed.[5] In early February 2014, complainant A's mother informed the Police that herother daughter, complainant B, then aged 13, also disclosed being assaulted by theplaintiff when she was six or seven years old. Both complainants were evidentiallyinterviewed in the following month.[6] Complainant A's allegations were that the plaintiff sexually assaultedcomplainant A in 2005 when she was seven to eight years old and he was 11-12 yearsold by touching her in the vaginal area on five occasions. Complainant B alleged thatwhen the plaintiff was 14 years old and she was six or seven years old, he touched heronce in the vaginal area. Some of the touching was alleged to have occurred in thecontext of playing "doctors and nurses".[7] Arrangements were then made to interview the plaintiff and he was interviewedon 1 May 2014 in the presence of his lawyer. He denied all allegations made by thecomplainants.[8] On 16 June 2014, the complainants' mother informed the Police that herdaughters did not want the plaintiff to be charged in relation to the allegations. Whilethey initially wanted the plaintiff to be warned, the Police advised that they could notwarn him because he had not admitted any involvement in the alleged incidents.[9] Detective Belinda Campbell, the officer in charge of the investigation, sent aletter to the plaintiff on 17 June 2014 which stated that the Police "were satisfiedhaving considered all the evidence that the information [was] accurate" but that thematter would not proceed to a prosecution, although that could be reconsidered if anyfurther offending occurred. It said a copy of the letter would be placed on the Policefile.[10] On 9 June 2014, after the plaintiff had been interviewed by the Police inrelation to the indecent assault allegations, but before he knew that the investigationwould not proceed to a prosecution, he signed a consent form authorising the Policeto disclose information about him to the Fire Service. He wanted to join the Serviceas a volunteer. Around the same time he also signed a consent form authorising thePolice to disclose information about him to the Open Home Foundation, which runs anetwork of foster homes, because the owners of the rural property where he was livingand working were proposing to foster children.[11] In those forms he provided his consent to disclosure to both organisations: of ANY information that may be held by Police, including any interactionI have had with Police in any context or any information received by Police.I understand that this is not limited to conviction information.[12] The Police had received both applications by 11 June 2014 at which point theybegan checking their databases to see what information was held about him. Thesesearches revealed that the plaintiff had a driving related conviction. They also revealedthe live investigation of the plaintiff in relation to the allegations of indecent assault.Given the nature of the allegations involved in the investigation, a decision was madeto refer the vetting requests to the Vetting Review Panel (the Panel).[13] The Panel that first considered the vetting requests comprised four seniorpeople from within the New Zealand Police Service. They were SuperintendentDavid Trappitt, National Manager: Communication Centres; a Senior Adviser fromLegal Services; the National Operations Manager: Community Centres; and theNational Manager: Criminal Investigations. Also present was a Team Leader in theVetting Service, Ms Shapelle McKenzie, who had had discussions with the officer incharge of the investigation, Detective Campbell.[14] The Panel had available to it the record of the alleged offending which washeld on the Police's national intelligence application (NIA) database. That databaseholds records about offences and incidents reported to the Police as well as intelligencenotings. They also had available an email exchange between Ms McKenzie andDetective Campbell relating to the vetting applications of the plaintiff. The emailexchange followed on from a telephone discussion between Ms McKenzie and theDetective, and it sought clarification and further information relating to the allegationswhich was not available from the NIA record.[15] The Panel considered the two vetting requests relating to the plaintiff when itmet on 24 June 2014. Superintendent Trappitt deposed that at that meeting the Paneldiscussed both whether the information was relevant to the positions being applied forand whether it could be substantiated. He explained that although the plaintiff deniedthe allegations, the Panel considered the alleged indecent assaults were "sufficientlysubstantiated, and had probably occurred". This was because:(a) There was more than one complainant and no suggestion of collusion.They both independently provided a high level of detail wheninterviewed by Police. There was also "visible effect" of the allegedoffending on both children prior to their disclosures because they hadrequired counselling and medication.(b) The officer in charge of the investigation would have charged theplaintiff except the complainants did not want to go to Court.(c) The plaintiff's father acknowledged it was possible for the offending tohave occurred and had sought counselling for the plaintiff.(d) The officer in charge of the investigation was concerned about thepotential for further offending by the plaintiff.[16] In terms of the relevance of the information, the Panel considered theinformation was significantly more relevant to the Open Home Foundation requestwhere the plaintiff would be living in a foster home as a boarder/flatmate. However,the Panel considered that firefighters were "likely to have access to children,particularly in emergency circumstances that could increase their vulnerability".Thus, while the Panel acknowledged there was a "very different level of risk" betweenthe two roles, and the information was less relevant to the Fire Service: it may be best to give them the information and leave the decision to them.Due to the level of detail, the panel is satisfied that the incidents probablyoccurred, but the applicant was a youth and the allegations are relatively lowlevel offending. He is an adult now, with no further known offending of thisnature.[17] Proposed wording for the disclosure was then drafted and circulated to Panelmembers. The draft the Panel proposed to release to the Fire Service read:2013: Police received a complaint that when the applicant was aged 11-12 heallegedly indecently assaulted a girl aged 7-8 and when the applicant was aged14-15 he allegedly assaulted a girl aged 6-7.The applicant was interviewed in May 2014 and denied all allegations. Policeconsidered that there was insufficient evidence to proceed to a prosecution.[18] The Panel met again on 30 July 2014 to discuss the wording of the disclosure,(although it had a different representative from Criminal Investigations attending).The Panel again discussed the wording of the written note to go to both requestingagencies. It decided to change the statement that there was "insufficient evidence" toproceed with a prosecution, to say that there was "sufficient information for aprosecution, but this did not proceed as the complainants did not want the matter to goto court". Superintendent Trappitt explains this was to convey that the Panelconsidered that the information disclosed met a sufficient level of substantiation forthe purposes of these particular vetting requests, even if it had not been tested in Court.[19] This amended statement was disclosed to both the Fire Service and the OpenHome Foundation on 1 August 2014. As a consequence, the plaintiff had to leave hisjob and accommodation at the rural property where the owners were to foster children,and he was unsuccessful in his application to join the Fire Service as a volunteerfirefighter.The plaintiff's pleadings[20] The plaintiff's claim relates to the release of the information to the Fire Service.While he denies the allegations, he does not challenge the decision of the VettingService to release the information to the Open Home Foundation. However, he claimsthat the decision to release the information to the Fire Service was unlawful in that itdid not comply with various rights of the plaintiff, including to obtain employment, toprivacy, and to the presumption of innocence.2[21] The plaintiff also claims that the decision was unfair in that the Vetting Servicefailed to give sufficient weight to various factors, including the impact on him, the factthat the information had not been tested in court, his age at the time of the allegedevents, and his right to be presumed innocent. Furthermore, he says the Panel shouldhave given him the opportunity to be heard before the decision was made to releasethe information.[22] For the same reasons, he claims the decision to release the information wasunreasonable.[23] Furthermore, to the extent considerations of proportionality indecision-making apply in New Zealand law, he claims the decision placed a2 Although the right to obtain employment was not pursued at hearing, except insofar as furtherdisclosure could damage future employment prospects, perhaps in recognition that the role in theFire Service was voluntary.disproportionate weight on the untested risk raised by the information against theinevitable adverse consequences for the plaintiff's application to join the Fire Service.The Vetting Service[24] Before discussing the claims made by the plaintiff, it is necessary to saysomething more about the Vetting Service. It was set up in 2000 and has developedsince then, in an ad hoc way, in response to changing statutory requirements forpre-employment or pre-registration checks.3[25] The Vetting Service does not operate within its own statutory framework.Rather, it is carried out as an administrative function pursuant to s 9 of the PolicingAct 2008 for the purposes of maintaining public safety and national security.4 Theprovision of vetting services is, however, expressly referred to in s 79B(2) and (3) ofthe Policing Act where it is identified as an example of a "demand service" for whichregulations can be made allowing for costs recovery. It is clear, therefore, that theprovision of vetting services is recognised by Parliament as a lawful function of thePolice.[26] Police vets are generally required for roles that involve working with children,young persons or other vulnerable members of society. They are also required undervarious statutes where a "fit and proper person" test applies. For example, they arerequired under the Land Transport Act 1998 for taxi drivers and under the EducationAct 1989 before a practising certificate to teach will be issued.[27] Importantly, to access the Vetting Service, the requesting agency must meetcertain criteria to be an "approved agency", usually being agencies that provide carefor children or other vulnerable people or who are otherwise required to screen orcheck individuals, such as Immigration New Zealand. Such agencies also haveagreements with the Police which, among other things, set out certain responsibilitiesthat those agencies have when making vetting requests. These include:(a) Explaining the purpose of the Police vet to the individual concerned;3 As was explained in the Joint Review at [24].4 Being two functions of the Police under ss 9(b) and (f).(b) Ensuring that the individual understands that any interactions withPolice may be released and not just convictions; and(c) Making their own independent assessment of the individual'ssuitability for the role applied for, and not merely relying on the vettingresults.[28] It is clear that the Vetting Service processes large numbers of applications eachyear. As explained in the evidence of Mr Mathew Sadd, the Continuous ImprovementAdvisor for the Vetting Service, the Vetting Service now has 29 staff members, andprocessed more than 630,000 vetting applications in 2017. In 2014, the year theplaintiff's requests were considered, the Vetting Service had 16 staff members anddealt with just under 500,000 requests.[29] The vast majority of requests are relatively straightforward. There is either noinformation on file, or there is only information in the form of a conviction which isreleased or not, in accordance with the Criminal Records (Clean Slate) Act 2004.Around two per cent of the requests involve considering the release of non-convictiondetails and these are dealt with by Team Leaders in the Vetting Service. Some of thoseare escalated to a file review officer and approximately .05 per cent are referred to thePanel for consideration. The Panel is made up of senior staff drawn from the threebusiness units within the Police: Communications, Criminal and Legal. They meet atregular intervals in relation to the most sensitive applications to consider whethernon-conviction information should be released and, if so, in what form. The plaintiff'svetting requests fell into that category.[30] In giving evidence about how the Vetting Service makes decisions on whetherto release information about a person other than convictions, Superintendent Trappittexplained that the tests of "relevance" and "substantiation" are used, saying "this helpsensure we only disclose information that could inform agencies' hiring decisions, andthat they can rely on".[31] In early 2015, a review was sought by the Vetting Service with the objective ofreviewing the Police's vetting policies and procedure to ensure that they were robustand legally compliant. It was undertaken as a Joint Review by thePrivacy Commissioner and the Independent Police Conduct Authority. The JointReview was also to identify opportunities for improvement to policy and practice toachieve an appropriate balance between protecting the vulnerable in the communityand protecting the privacy interests of individuals who were the subject of vettingapplications.[32] Both parties referred to observations and findings contained in the JointReview to support their submissions. I found the Joint Review helpful in identifyingthe issues confronting the Vetting Service when processing a sensitive vetting requestsuch as those relating to the plaintiff. The tests the Panel used of "relevance" and"substantiation" of information were identified in the Joint Review as important toreaching robust and consistent decisions.[33] In respect of the "relevance" threshold for the release of the information, theJoint Review noted that such a threshold would need to "vary according to the natureof the risk posed. For example, a possible risk to vulnerable children should carry alower relevance threshold than a possible risk to adults".5 It also cautioned that someinformation, such as information about past mental health issues that were not relatedspecifically to offending, should not be released. That is because the question ofwhether that is relevant to a particular role requires clinical expertise and Police vettingstaff are not qualified to make such assessments.[34] In terms of deciding whether the information is sufficiently substantiated tojustify its release, the Joint Review's recommendation was that the standard ought tobe lower than the criminal standard of beyond reasonable doubt, but should varyaccording to both the nature of the information and the nature of the role that theperson holds or is being considered for. That would mean:6 [i]n some cases, a balance of probabilities standard is appropriate; in othercases (such as where the anticipated behaviour is child sexual abuse), it shouldbe lower.5 Joint Review, above n 1, at [38].6 At [105].[35] This proceeding is about whether the Panel had appropriate information to besatisfied that the information was sufficiently substantiated and relevant in order toreach its decision to release it to the Fire Service.The issues[36] The plaintiff's pleadings challenge the decision to release the information tothe Fire Service on a range of grounds. The pleadings also assert that because thedecision involved his privacy rights, which are recognised internationally as importanthuman rights, the Court should show less deference to the decision-maker andscrutinise the decision more closely.[37] The plaintiff makes a range of specific criticisms of the decision, many ofwhich are relied upon to advance more than one ground of review. Further issues wereraised in written submissions and in oral submissions. The pleadings were not alteredto reflect the additional points raised in oral argument. In fairness to the defendant, Ihave confined the issues to those raised in the pleadings and, to a lesser extent, to thosefurther issues raised in the written submissions exchanged in advance of hearing.[38] Given the number of issues raised, I consider it is more efficient to deal withthe individual criticisms of the decision-making process before determining whetherthe claims that the decision was unlawful, unreasonable, unfair, and disproportionate,are made out.[39] Approaching it in that way, the issues for determination are:(a) What level of scrutiny should the Court adopt?(b) Did the Panel have adequate information on which to make thedecision?(c) Should the Panel have had regard to s 22 Crimes Act 1961 and s 322Children, Young Persons, and Their Families Act 1989?77 Which was the relevant legislation at the time.(d) Did the release of information breach principle 8 or principle 11 of thePrivacy Act 1993?(e) Did the Panel ignore, or fail to give weight to, the plaintiff's right to bepresumed innocent until proven guilty?(f) Did the Panel properly apply the test of relevance of the information tothe Fire Service vetting request?(g) Should the Panel have given the plaintiff an opportunity to be heard?(h) Was the decision therefore unlawful, unfair or unreasonable?(i) Was the decision to release the information a proportionate one?(j) If the decision did err in one of the ways claimed, what relief can begranted in circumstances where the consequences of that decision arenot able to be reversed?What level of scrutiny should the Court adopt?[40] Numerous decisions of the High Court and Court of Appeal have recognisedthat decisions involving fundamental human rights will attract more intense scrutinythan other decisions.8 This approach has been used, for example, in immigration caseswhere the person facing deportation may be at risk of torture if they are returned totheir home country.9[41] The plaintiff submits that privacy should be treated as a fundamental right andshould, as Mallon J said in Kim v Minister of Justice, require the Court, in itssupervisory jurisdiction, "to closely scrutinise the Minister's exercise of the power".10While the plaintiff accepts that privacy interests are not among the fundamental rights8 See, for example, Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA)at [212]; Ye v Minister of Immigration [2009] 2 NZLR 596 (CA) at [303]; Waitakere City Councilv Lovelock [1997] 2 NZLR 385 at 403.9 See, for example, Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425.10 Above n 6, at [7].that are affirmed in the New Zealand Bill of Rights Act 1990, he says they arerecognised in international human rights instruments and have also received increasingrecognition in recent years in New Zealand, both in statute law and by theNew Zealand Courts at appellate level. Because, in the present case, personalinformation was released, in breach of his rights of privacy, he submits the Courtshould review that decision more intensely than it would other administrativedecisions involving less critical matters.[42] In response, the defendant notes that while a number of High Court decisionsand a few Court of Appeal decisions have invoked the North American "hard look" orthe British "anxious scrutiny" language in the context of cases involving fundamentalrights, the Supreme Court has thus far refused to adopt such an approach.11 In anyevent, even where a statutory power affects a fundamental right, the Court's focus doesnot shift from the lawfulness, reasonableness and fairness of the decision into itsmerits. This was recognised in the Kim decision relied upon by the plaintiff, whereMallon J acknowledged that:12Heightened scrutiny is not a merits review. While it is difficult to define withprecision what heightened scrutiny entails, in the present context I consider itrequires the court to ensure the decision has been reached on sufficientevidence and has been fully justified, while recognising that Parliament hasentrusted the Minister (not the courts) to undertake adequate enquiries and toexercise her judgment [43] In summary, therefore, the defendant says that:(a) heightened scrutiny does not apply in this case because the right inquestion (privacy) is not a "fundamental" right; but(b) even if privacy is considered to be a fundamental right and examinedthrough the lens of heightened scrutiny, this does not open the door toa merits-based review; the issue is still whether the Panel's decisionwas unreasonable, unlawful, or reached in a procedurally impropermanner.11 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at[5].12 Kim v Minister of Justice, above n 6, at [7].Discussion[44] I accept that a decision involving an individual's right to privacy can bedistinguished from decisions involving fundamental rights, such as the right to life orthe right to freedom from torture, where the Courts have determined that some formof heightened scrutiny may be appropriate. That said, the Courts have accepted a highlevel of scrutiny may be engaged in other contexts, such as decisions that affect anindividual's ability to engage in environmental decisions that could affect them,13 anddecisions that could affect employment prospects.14[45] However, the disclosure of private information by the Vetting Service involvesa balancing of considerations, because it may be in the public interest to allowdisclosure of what is otherwise personal information. That tension between anindividual's rights and the public interest is reflected in the exceptions to theinformation privacy principles set out in the Privacy Act. They acknowledge that thereare circumstances where privacy rights should give way to identified public interestconsiderations.15[46] In my view, there is no reason to engage the concept of "heightened scrutiny"in this case, or to look more closely at the decision in light of the pleaded grounds ofreview. The proper approach is to review the Panel's decision on recognised groundsand determine whether it withstands scrutiny on that basis. If the decision is madehaving regard to all mandatory relevant considerations and ignoring irrelevantconsiderations, in a procedurally fair manner, and the decision is open to a reasonabledecision-maker, it will have taken account of these competing interests and will not bevulnerable on review.Did the Panel have adequate information on which to make the decision?[47] The plaintiff makes a number of criticisms of the information that was beforethe Panel. He submits that "the information placed before the panel was in summaryform, remarkably brief and generated if not exclusively then almost substantially by13 Pring v Wanganui District Council (1999) 5 ELRNZ 464 at [7]; Westfield (New Zealand) Ltd vNorth Shore City Council, above n 8 at [116].14 Z v Director of Proceedings HC Wellington CIV-2007-485-2631, 3 October 2008 at [18].15 See s 6 Privacy Act and, in particular, privacy principle 11.the Officer in Charge who had formed a very clear view apparently, that the allegedoffending had occurred". In a related submission, the plaintiff also criticised the Panelfor not conducting its own investigation into the allegations, including viewing theevidential videos itself.[48] He is also critical of the Panel relying on information that it had not challengedor tested. For example, it relied on an assertion that the complainants receivedcounselling and medication, without testing what the nature of the counselling was, orwhat the medication was prescribed for. Similarly, it relied upon an apparentacknowledgement by the plaintiff's father that it was possible the offending hadoccurred and he sought counselling for his son, when any such acknowledgement isdenied by the plaintiff's father in an affidavit before this Court.[49] The defendant, on the other hand, says, of necessity, the Vetting Service andthe Panel rely on information obtained by, and the impressions of, frontline staffinvolved in such cases. If the Panel was required to independently satisfy itself of thebasis for all information provided by frontline staff the vetting system would be unableto function. It says this is not an unusual or surprising feature of the vetting systemand individuals in positions of seniority in a variety of organisations will routinely relyupon the professionalism and integrity of other staff within the organisation and theprovision of information to inform their decision-making.Discussion[50] It is not disputed that a decision-maker must have adequate information beforeit in order to make a decision.16 However, there is no general duty of pro-activeinvestigation except where the insufficiency of existing information necessitatesthat.17[51] In the present case, it must also be borne in mind that the decision is aboutwhether to release existing information about a concluded Police investigation. It isnot about the investigation itself. The Panel was not required to replicate the16 Air Nelson Ltd v Ministry of Transport [2008] NZCA 26, [2008] NZAR 139.17 See for example, Discount Brands Ltd v Northcote Main Street Inc [2004] 3 NZLR 619 (CA) at[47].investigation, but to satisfy itself that the information emerging from thatinvestigation, and which was being considered for release, was adequatelysubstantiated and that the officer's view that the relevant behaviour had occurred wasreasonably held.[52] In this case, there was affidavit evidence from Detective Campbell regardingher investigation of the complaints in this case. It is clear she was privy to all relevantinformation as she had viewed the complainants' evidential interviews, interviewedthe plaintiff, and spoken with other family members of both the plaintiff andcomplainants. The Panel was entitled to accept her professional conclusion on thatmatter, having engaged with her and sought further information from her on the scopeof her investigations.[53] While subsequent factual disputes may have arisen, those are not amenable toresolution on judicial review, unless it can be shown that the information before thePanel was plainly erroneous rather than simply contested. It is clear that the primarybasis for the Detective's view was her assessment that the recorded evidentialinterviews provided by the complainants were credible. The Panel was entitled,having made further enquiries of her, to accept her professional opinion on that matter,and I do not consider the decision is vulnerable on this ground.Should the Panel have had regard to s 22 Crimes Act 1961 and s 322 Children,Young Persons, and Their Families Act 1989?[54] The plaintiff submits that s 22 of the Crimes Act and s 322 of the Children,Young Persons, and Their Families Act were not considered by the Panel, and yet wererelevant to whether he could have been convicted and, therefore, to whether theallegations were sufficiently substantiated.[55] Section 22 of the Crimes Act requires that in cases involving charges broughtagainst children between 10 and 14 (which the plaintiff was at the time of the allegedoffending), the prosecution must prove both the acts relied on to lay the charge, andalso that the child knew that the act was wrong, or that it was contrary to the law.[56] Section 322 of the Children, Young Persons, and Their Families Act reinforcesthe need to progress charges against young people without delay and allows aYouth Court Judge to dismiss a charge against a young person if there has beenunnecessary or undue delay between the date that the offence was committed and thehearing.[57] In the plaintiff's view, these were relevant to whether the officer in chargecould reasonably conclude that the alleged offending had occurred because if theprosecution could not overcome these hurdles, a conviction could never result.Discussion[58] I consider the plaintiff's submission fails to focus on what aspect of theallegations was relevant to the vetting process. As the defendant submits, the questionfor the Panel is not whether a prosecution would inevitably succeed if brought. It iswhether the Police are sufficiently satisfied that relevant conduct which may constitutea risk to the safety of children or other vulnerable people is likely to have occurred.That is a different question from whether a prosecution relying on those facts couldsucceed. The presence of a defence, or a procedural barrier to prosecution, will notnecessarily bear on whether the relevant behaviour is appropriately substantiated. Theplaintiff's concession that the information was relevant to the Open HomeFoundation's vetting request underscores this.[59] I therefore do not consider that the Panel erred in its decision-making by failingto take into account the statutory defence in s 22 Crimes Act or the considerations ins 322 Children, Young Persons, and Their Families Act. What s 22 does highlight,though, is that age at the time of the offending is relevant to the seriousness of theoffending and how much weight should be put on it when deciding whether it isrelevant information warranting disclosure. This is a matter I discuss further below.Did the release of information breach principle 8 or principle 11 of the PrivacyAct 1993?[60] The plaintiff's pleadings assert that the decision breaches his right to privacyby disclosing information other than for the purpose for which it was gathered, whichwas for Police investigative purposes. By implication he asserts a breach of privacyprinciple 11 which states that personal information shall not be disclosed except for apurpose for which it is gathered, unless certain defined circumstances apply.[61] In written submissions, he also claimed that the change in wording of theinformation released, from there being "insufficient" to "sufficient" evidence to bringa criminal charge, was wrong and therefore was in breach of privacy principle 8 whichrequires information released to be accurate, and not misleading. In this case hesubmits that there was not "sufficient" evidence to charge because the complainantsdid not wish to give evidence. A prosecution could never have proceeded without thatevidence so the earlier proposed wording of there being "insufficient" evidence wasaccurate and should have been retained.[62] The defendant relies on the consent given by the plaintiff to release theinformation to the Fire Service as satisfying one of the express exceptions to thegeneral principle that personal information should not be disclosed.18[63] In respect of the assertion that the information released was misleading, thedefendant says that, to the contrary, the final wording was revised to ensure that whatwas released accurately reflected the views the Police had formed.[64] In any event, the defendant points out that under s 11(2) of the Privacy Act, abreach of an information privacy principle does not create a right of action enforceablein the Courts.19Discussion[65] I accept that the privacy principles are not enforceable in a Court of law.However, a failure to comply with them when making a decision to release personalinformation could well have consequences on an application for review. At the veryleast, those principles should be considered relevant considerations in making adecision to release personal information.18 Being the exception set out at (d) of privacy principle 11.19 Complaints regarding breaches of privacy may be made to the Office of the Privacy Commissionerand then to the Human Rights Review Tribunal.[66] I am satisfied that, at least provisionally, the consent provided by the plaintiffauthorised the disclosure of information and so there is no breach of principle 11 bythe mere fact of disclosure to the requesting agency. However, that consent must beread as only authorising disclosure of material which is adequately substantiated, andwhich is sufficiently relevant to the matters being considered by the requesting agency.In other words, it is an authority to provide any information held by the Police whichthe Vetting Service, in the proper exercise of its discretion, considers should bereleased. It can not authorise the release of information that is, for example, inaccurateor irrelevant. Whether that is the case here is addressed in considering the other issuesraised by the plaintiff.[67] In terms of whether the information was released in a form that was accurateand not misleading, I consider that the description of the evidence as "sufficient" fora prosecution should not be interpreted in the unduly technical way proposed by theplaintiff. It is clear to an ordinary reader of the information released that thedescription of the evidence as "sufficient to proceed to a prosecution" was aconclusion as to the reliability of the evidence supporting the allegations. It wasbalanced by the statement that the defendant denied the allegations. I consider that, inthis form, the information released was not misleading.[68] For these reasons, I do not consider the Vetting Service erred by failing to haveregard to the relevant principles of the Privacy Act.Did the Panel ignore, or fail to give weight to, the plaintiff's right to be presumedinnocent until proven guilty?[69] Although a pleaded ground of review was that the decision failed to haveregard to the plaintiff's right to be presumed innocent until proven guilty, thatallegation was not explored in any further depth, except to the extent it arose underother topics such as whether in the circumstances he could have been convicted.Nevertheless, I briefly discuss the relevance of this consideration to theVetting Service's decision.Discussion[70] It is clear that the Vetting Service can release information where conviction hasnot resulted, and indeed where it could not result, and there is no absolute barrier toreleasing such information. In my view, this concern is best taken into account whenthe Panel considers whether the information is sufficiently substantiated and relevantto warrant its release.[71] While the presumption of innocence is fundamental to our criminal justicesystem, where the consequences of conviction are generally public, punitive and couldinvolve the loss of liberty, the consequences of release of information by theVetting Service are different. In the latter case, those consequences are required to bebalanced against the risks that may be averted by the release of information to theparticular requesting agency involved. Thus, the presumption of innocence is relevantto, but not determinative of, the Vetting Service's decision. Instead, it is reflected inthe requirement for the information to be both sufficiently substantiated and relevant.It is also reflected in the Joint Review's conclusion that the level of substantiationrequired to justify the release of relevant information "should vary according to boththe nature of the information and the nature of the role that the person holds or is beingconsidered for".20[72] In this case, the Panel clearly considered whether the claims were adequatelysubstantiated. They also ensured that the form in which the information was releasedincluded the plaintiff's denial of the allegations. By using these mechanisms, Iconsider that the Panel did, to the extent it needed to, give weight to the plaintiff'sright to be presumed innocent until proven guilty.Did the Panel properly apply the test of relevance of the information to theFire Service vetting request?[73] The plaintiff notes that emails provided from the Vetting Service recognisedthat the role in the Fire Service is "only incidentally connected with children". It alsoidentified, as recorded in the minutes of the meeting, that there was a "very differentlevel of risk in roles", between the Open Home Foundation and the Fire Service.20 Joint Review, above n 1, at [104].Despite this, the Panel records in the minutes of its meeting that the decision was madeto leave it to the Fire Service to make up its mind on its relevance, saying "it is lessrelevant to Fire Service, but it may be best to give them the information and leave thedecision to them". The plaintiff says that this was quite wrong as it is for the Panel todecide whether or not to release the information having evaluated the risk that theplaintiff may pose against the privacy rights that the plaintiff must have, and theundoubted detrimental effects such a disclosure would have on any job prospect.[74] The plaintiff also notes that while Superintendent Trappitt refers to the tests ofrelevance and substantiation being used, he does not define what he means by that.21The plaintiff submits that while recognising the difference between the Open HomeFoundation and the Fire Service, the Vetting Service failed to give that differencesubstance in their considerations. They wrongly left it to the Fire Service to determineits relevance. This flaw in the way the Vetting Service approached the analysis ofdisclosure in this case was aggravated by the fact that they did not give the plaintiff anopportunity to be heard on that issue.[75] The defendant confirms that the criteria for evaluating information to beprovided by way of Police vet are:(a) whether the information in question is relevant to the position appliedfor; and(b) whether the Police are satisfied the information held is sufficientlysubstantiated to be released.[76] The defendant relies on Superintendent Trappitt's evidence to support the factthat those criteria were applied in this case, saying that the Panel gave "particularlyclose consideration to the New Zealand Fire Service application and made a separatedetermination with respect to it". There is no basis on which to assert therefore thatthe Panel did not properly apply the test of relevance.21 While the submissions referred to paragraph 13 of the evidence of Mr Sadd, it isSuperintended Trappitt whose gave this evidence.Discussion[77] In carrying out the vetting process, the Police have an obligation to ensure thatonly relevant information is released. While the Joint Review discusses thisrequirement in some depth in relation to information where suppression orders havebeen made, and in relation to disclosure of mental health information, it glosses overwhat steps are required to determine that information is relevant in other cases, exceptfor saying that the Police must take "reasonable steps" to determine that informationis relevant.22[78] In the case of mental health information, the Joint Review notes that Policevetting staff are not qualified to make an assessment of whether a person's past mentalhealth or related behaviour is relevant to a particular role, as that requires clinicalexpertise. They conclude, therefore, that they:23do not consider it is appropriate for the Police to release, in a vettingresponse, information about the mental health of an individual where thisinformation has been recorded in a non-criminal context and there is noevidence of any link between the individual's health and any offending ordirect risk to any other individual.[79] The report goes on to observe that the Police proceed:24on the basis that responsibility for assessing suitability for a job remainswith the employer, and that the results of a Police vet are just one source ofinformation [however] in most cases this does not reflect the reality.[80] These observations support the fact that the Vetting Service must proceed withcaution when deciding to release non-conviction information. It must be sure theinformation is relevant before releasing it and, in the case of mental health issues atleast, the Joint Review cautions against releasing it because the Police are notadequately trained to make that assessment.[81] In the present case, I also consider that the issue of relevance was not properlyaddressed by the Vetting Service. The thrust of its approach was to focus onsubstantiation and then, if there was the mere possibility of relevance, to disclose and22 Joint Review, above n 1, at [94].23 Joint Review, above n 1, at [90].24 At [91].leave it to the requesting agency to make the determination on relevance. While theVetting Service may consider that its opinion that "fire fighters are likely to haveaccess to children, particularly in emergency circumstances that could increase theirvulnerability", constituted an assessment of relevance, the confidence of thatconclusion is undermined by its recorded decision that "it may be best to give [the FireService] the information and leave the decision to them".[82] Given the Vetting Service's conclusions that the incidents occurred when theapplicant was a youth, they involved relatively low level offending, and he was nowan adult with no further known offending of that nature, it was important that it wassatisfied there was a relevant risk, rather than leaving this to the Fire Service itself.This is particularly so in light of the prejudicial effect such information would almostinevitably have if released, regardless of its relevance. At the very least, in suchcircumstances, I consider this is a further category of request where, given theuncertainty as to its relevance, an opportunity should be afforded to the plaintiff to beheard, a topic I address under the next heading.Should the Panel have given the plaintiff an opportunity to be heard?[83] The plaintiff submits that his right to natural justice was breached because hewas not given an opportunity to be heard before the Panel decided to release thenon-conviction information to the Fire Service. In asserting this he relies, in particular,on observations made in R v Commissioner of Police of the Metropolis, which alsoinvolved a challenge to Police disclosure of information during the vetting process.25[84] In Metropolis, Lord Hope stated that where there is doubt as to relevance,substantiation or currency of information, the applicant should be given an opportunityto make representations to the decision-maker before disclosure, although:26 it will not be necessary for this procedure to be undertaken in every case.It should only be resorted to where there is room for doubt as to whether thereshould be disclosure of information that is considered to be relevant. The risksin such cases of causing disproportionate harm to the applicant outweigh theinconvenience of the chief constable.25 R v Commissioner of Police of the Metropolis [2009] UKSC 3.26 At [46].[85] In the Joint Review there was also recognition that it was neither practical nornecessary to allow a broad class of applicants the opportunity to be heard on a proposalto release information.27 However, the Joint Review recommended that the Policeshould give individuals an opportunity to comment:28 in every case where the Police know or have good reason to believe thatthe person concerned does not know that the material exists or, given thenature of their interactions with the Police, will not be expecting the releaseof that information in the context of a vetting application.[86] In this case, the plaintiff suggests that either the approach in Metropolis shouldhave been adopted, or that he falls into the category identified by the authors of theJoint Review because he did not know the Police could release information about theinvestigation to his potential employers. In support of the second submission, he relieson the letter sent to him on 17 June 2014 which he says suggests that the informationwould only be used if any further offending on any children was alleged. He wastherefore not expecting the information to be released for any other purpose.[87] The defendant, however, submits that the requirements of natural justice havealways been inherently variable and context-dependent. Consultation, or theopportunity to make representations, will not be required in every case. As wasidentified by Elias J in Ali v Deportation Review Tribunal, the key elements warrantingan opportunity to make representations are where there is surprise and potentialprejudice.29 If there is no surprise in an allegation or, even if there was surprise, therecould be no prejudice because further notice would not have assisted the personaffected to meet the allegation, then there is no unfairness in the process.[88] In this case, the defendant says that the plaintiff was clearly expected to haveknown the substance of the information the Police held about him as he signed theconsent form authorising the release of information on 9 June 2014, only five weeksafter he had been interviewed by Detective Campbell about the allegations. At thatstage he did not know whether the Police would proceed to prosecute him. In thosecircumstances, the defendant could reasonably assume that the plaintiff would recall27 Joint Review, above n 1, at [66].28 At [11],29 Ali v Deportation Review Tribunal [1997] NZAR 208 at 220.those interactions with the Police and would be aware of the possibility they could bereleased by the consent he signed.[89] The defendant argues that it is not its responsibility to ensure the plaintiff isnot caught unawares by non-conviction information being disclosed when it hadreceived a consent form from the plaintiff which expressly said that such informationcould be disclosed. Ms McCall also submitted that it would make the systemunworkable if the Police were required to go behind the signed consent form in everycase to check that a vetting subject was aware that information other than his or herconviction history may be released. In any event, she says that the defendant was wellaware of the plaintiff's response to the allegations, which was to deny them, and thesummary of the information provided to the requesting agencies recorded this.Discussion[90] There is no doubt that the requirements of natural justice are context-specific.In this case, it is important to distinguish between the requirements triggered wheninvestigating the original allegations and the requirements which might arise whendeciding whether to release information.[91] In terms of the investigation of the original allegations, the plaintiff was clearlymade aware of them and had been afforded the opportunity to respond to them. Hehad taken this up by engaging with the Police, with the assistance of a lawyer, anddenying the allegations. He then signed the consent form authorising the Fire Serviceto receive any information about him from the Police, not just non-convictioninformation.[92] In my view, given the recency of his interactions with the Police, the possibilitythat the Police would release information about those allegations must have beenapparent. This was not, therefore, a case where the plaintiff was unaware of theprejudicial material or had been given any reason to think it would not be released.Indeed, given the clear wording of the consent which the plaintiff provided, whichauthorised the release of "ANY information that may be held by Police, including anyinteraction I have had with Police in any context", he was on notice of the possiblerelease of this information. This is not a case therefore that comes within one of theexceptions identified by the Joint Review as warranting an opportunity to makerepresentations.[93] In this case, the plaintiff signed this consent form while the investigation wasongoing and before he received the letter of 17 June 2014 confirming he was not goingto be prosecuted. I do not consider any reliance can be placed on that letter to suggestthe information would not be released. In any event, there is no inconsistency betweenwhat is in the letter and the ability to release information about the allegations inresponse to a vetting request.[94] However, for the reasons set out in [82] above, I consider there was uncertaintyas to the relevance of the information to the Fire Service request and, therefore, a needto be conservative about making the decision to release it unless the Vetting Servicehad reached a clear view that it was relevant. One option in that circumstance was togive the plaintiff the opportunity to be heard on the question of release. That wouldhave allowed the opportunity to consider the relevance of the information to theparticular agency making the vetting request, which was not a matter which theplaintiff had had an opportunity to consider and respond to in the earlier investigation.[95] This is not to suggest that there is a general need to allow a right to be heardon any release of non-conviction information. I accept, entirely, the observation in theJoint Review that it would be impracticable for the Police to always give individualsadvance notice if an adverse comment is to be provided to an agency. Instead, Iconsider that an opportunity to be heard is required in the circumstances identified bythe Joint Review.30 It should also be provided where there is a real question overwhether it meets the test of being relevant to the risks that the person may pose in theposition for which they are considered, as I have found was the case here.Was the decision therefore unlawful, unfair or unreasonable?[96] In my view the decision to release did not take account of the acknowledgedrequirement that the information be considered relevant to the plaintiff's role in the30 That is, where the Police have good reason to believe the person concerned does not know thematerial exists or, where there is a reason to consider they will not be expecting the release of thatinformation in the context of a vetting application: Joint Review, above n 1, at [68].requesting agency. While it proffered a possible basis for it being relevant I considerthe evidence shows it deferred the consideration of that issue to the agency itself, whenit should not have done so. I therefore consider the decision was unlawful in that itfailed to satisfy itself in respect of a relevant consideration which was the relevanceof the information to the Fire Service role.Was the decision to release the information a proportionate one?[97] While not strictly necessary in light of my findings above, I comment on theplaintiff's final ground of review, which is to submit that the doctrine ofproportionality would allow the Court to hold that release of the information was notjustified in circumstances of the Fire Service vetting request.[98] In Council of Civil Service Unions v Minister for the Civil Service,Lord Diplock identified proportionality as a conceivable fourth ground of review inaddition to the grounds of illegality, irrationality and procedural impropriety.31[99] The New Zealand Courts have been somewhat reticent about identifying thisas a separate or standalone ground of review, preferring instead to see it as a particularaspect of unreasonableness review.32 For example, in Fitchett v Board of Trustees ofNelson College, this Court said:33 proportionality is not a stand-alone ground for review, but is bestunderstood when considering whether a decision is unreasonable in theWednesbury context. I also agree that an analysis of proportionality risksbecoming a review of the merits of a decision[100] In a sense, that is acknowledged by the plaintiff in his submissions. He says"the very reason it may be regarded as unreasonable is because the decision wasdisproportionate".31 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410.32 See, for example, Institute of Chartered Accountants of New Zealand v Bevin [2003] 1 NZLR 154at [55] and Conley v Hamilton City Council [2007] NZCA 543, [2008] 1 NZLR 789 at [58].33 Fitchett v Board of Trustees of Nelson College [2017] NZHC 1648, [2017] NZAR 1565 at [65].[101] Thus, despite academic support for adopting proportionality as a discreteground of review,34 it has only featured in a limited range of cases, such as thoseinvolving challenges to bylaws.35[102] However, even in those cases where a proportionality standard is required, suchas when a Court is called upon to determine whether the state has demonstrablyjustified the limitation of some right or freedom, the question is whether "the limitingmeasure serve[s] a purpose sufficiently important to justify curtailment of the right orfreedom".36 That approach envisages there being a choice of measures available toachieve the objective sought and therefore the ability to select one that impacts on thepersonal right or freedom no more than is necessary to achieve that objective.[103] In this case, the competing interests are the plaintiff's right to privacy againstthe risk he might pose in any role to more vulnerable members of society. He acceptsthat his privacy interests should give way to those public interests at times, asacknowledged by his concession the information was appropriately released to theOpen Home Foundation. However, in the context of a Police vetting request, thePolice have no ability to select from a range of responses one which best balances thepublic interest against an individual's privacy interest. They have a stark choicebetween withholding the information or releasing it. It is a binary choice; either thecircumstances are sufficient to warrant release of the information or they are not.There is no ability to select an alternative option which better balances the twoobjectives.[104] In these circumstances, I see no basis for applying a proportionality analysis.Rather, the decision to release the information must be defensible in light of theordinary grounds of review and I have reviewed it on that basis.34 See, for example, Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed,Thomson Reuters, Wellington, 2014) at 24.5.2 (4).35 See, for example, Schubert v Wanganui District Council [2011] NZAR 233 and Conley v HamiltonCity Council, above n 24.36 Cropp v A Judicial Committee [2007] NZAR 465 (HC) at [64].What relief should be granted?[105] The relief sought by the plaintiff is simply that the following declarations aremade:(a) that the decision to release the information was wrong on the groundspleaded; and(b) that the information should only be used by the Police for investigativepurposes and not disclosed to outside agencies in terms of jobapplications made by the plaintiff and in the course of applications totravel to other countries that may require Police vetting.While the pleadings also sought damages, that was not pursued at hearing.[106] I see no difficulty with making a declaration along the lines of the firstdeclaration sought. However, I see no basis for making the second declaration.[107] During the hearing it was acknowledged that the information in question wouldnot be relevant to requests for disclosure of convictions for the purpose of travellingto other countries. In terms of requiring the information to be disclosed only for Policeinvestigative purposes and no other, I see no reason to confine the functions of theVetting Service in this way. First, I see no error in the Police having released thisinformation in response to the vetting request from the Open Home Foundation. Thatwould not have been possible if a declaration had been in place in the terms sought bythe plaintiff. Furthermore, while it was agreed by all that the relevance of thisinformation to any request would abate with time, perhaps to the point where it hadno relevance at all, that would not be the case if for example, a further allegation ofthis nature was made. If I made the second declaration sought, the Vetting Servicewould not be able to provide what they may consider relevant information to arequesting authority (being the complete history of offending allegations if asubsequent allegation had been made) because they were constrained by mydeclaration.[108] I have no doubt that the Police endeavour to carry out the function of theVetting Service in a responsible and principled way. That is demonstrated by themseeking, and implementing, the guidance found in the Joint Review. I consider themaking of a declaration in respect of the decision in question is sufficient vindicationfor the plaintiff and will give guidance to the Vetting Service in respect of futurerequests.[109] Accordingly, I make the following declaration:(a) the decision by the Vetting Service to release the information about theplaintiff to the Fire Service was in error because it deferred theassessment of relevance to the requesting agency instead of satisfyingitself that this requirement was met.Costs[110] Costs should follow the event. Leave is reserved to determine costs if they cannot be agreed. However, I see no reason why 2B costs would not be appropriate.Name suppression[111] The plaintiff has sought permanent name suppression. This was granted on aninterim basis prior to hearing. The grounds on which it is sought is that the very subjectmatter of the proceedings is to prevent disclosure of the allegations because of effectson his privacy and his ability to obtain work. Furthermore, such publication wouldcause embarrassment and distress to both him and his family. While the plaintiffacknowledges that the business of the Court should be open to the public, and that thisis a fundamental principle, the circumstances of this case justify an exception.[112] I accept that in civil proceedings, the power to suppress lies in the Court'sinherent jurisdiction, but that the starting point is that the business of the Court shouldbe open to the public.37 However, the decision as to whether to suppress some aspectof what was presented to the Court does not require exceptional circumstances to be37 ASB Bank Ltd v AB [2010] 3 NZLR 427 at [9].demonstrated. Rather the question is whether the circumstances justify an exceptionto the fundamental principle of open justice.38[113] In this case, the only suppression sought is of the plaintiff's name. The factualbackground, the issues at stake, and the decision made are all apparent on the face ofthe decision. Publication of the plaintiff's name will add nothing to the understandingof the issues but will have adverse effects on the plaintiff in terms of his right to bepresumed innocent until proven guilty, the potential effect on his personal and worklife, and the personal embarrassment of having this information being made public. Isee no overriding public interest that would warrant such disclosure.[114] I have no hesitation in those circumstances in saying it is appropriate thatpermanent name suppression should apply and, for the record, no opposition to thesame was raised by the defendant. Accordingly, I order that the plaintiff's name bepermanently suppressed.Solicitors:P J Shamy, Barrister, ChristchurchCrown Law, Wellington38 At [14].