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Geary v New Zealand Psychologists Board [2012] NZHC 2403 (17 September 2012)

Last Updated: 21 September 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-2068 [2012] NZHC 2403

BETWEEN IAN RUSSELL GEARY Applicant

AND NEW ZEALAND PSYCHOLOGISTS BOARD

Respondent

Hearing: 7 August 2012

Counsel: A C Beck for Applicant

R E Schmidt-McCleave with E G Thomson for Respondent

Judgment: 17 September 2012

JUDGMENT OF THE HON JUSTICE KÓS (Leave to Appeal)

[1] Mr Geary applies for leave to appeal from a decision of the High Court[1] given on 21 March 2012. That decision in turn dismissed an appeal brought by Mr Geary against a decision of the Human Rights Review Tribunal which largely dismissed claims against the Board concerning its handling of personal information about, or information access requests by, Mr Geary.

[2] The appeal in the High Court embraced five issues:

(a) Issue 1: Did the Tribunal deny the appellant a fair hearing, by adopting a “prejudicial and unfair approach” in insisting that the hearing proceed on 7 June 2011?

(b) Issue 2: Did the Tribunal err in concluding that Principle 11 was not

_{breached by the Board when its prosecutor released Mr Geary’s ACC}

GEARY v NEW ZEALAND PSYCHOLOGISTS BOARD HC WN CIV 2011-485-2068 [17 September 2012]

client list to complainant X when checking whether she had been notified of his loss of ACC panel status?

(c) Issue 3: Did the Tribunal err in concluding that Principle 6 was not breached by the Board in responding to Mr Geary’s 14 January 2005 information request in terms omitting an alleged disclosure to the New Zealand Psychologists’ Society of a further complaint made against the appellant?

(d) Issue 4: Did the Tribunal err in concluding that Principle 6 was not breached by the Board in withholding the contents of the complaints by complainants Y and Z (neither of which was being investigated)?

(e) Issue 5: Did the Tribunal err in refusing to award the appellant any remedy, in particular, either declaratory relief or damages?

[3] The Court answered those five issues as follows:

(a) Issue 1: No. The Tribunal did not “bully” the appellant into representing himself or unjustly criticise him for the process he adopted in arguing his case. Mr Geary’s application for legal aid was late, the Tribunal bent over backwards to accommodate him, and its criticisms of his belated production of certain documents on the morning of the hearing was entirely justified.

(b) Issue 2: No. First, the information contained in the client list was not personal information about the appellant at all. Secondly, the list should have been put before the Tribunal by Mr Geary. His failure to do so, so that the Tribunal could evaluate its status (in light of cross- examination), meant he had not met the persuasive burden to show the Tribunal decision was plainly wrong.

(c) Issue 3: No. The Tribunal was entitled to find as it did. Nothing new was put forward by Mr Geary to compel a different finding.

(d) Issue 4: No. The Tribunal was right to find that the Board had failed to meet principle 6 in relation to file management, and its failure to disclosure the existence of complaints by complainants Y and Z in May 2005. But the Board was correct in not disclosing the contents of those complaints when it rediscovered them. The complaints were not a direct or operative basis for the decision to establish a competence review in relation to Mr Geary in May 2005.

(e) Issue 5: Yes. While no case for damages was established, the Tribunal should have declared, formally, that the Board’s response to the plaintiff’s information access request of 3 May 2005 did not meet the standard required by principle 6, by not disclosing the existence of the two historic complaints.

[4] Mr Geary applies for leave in relation only to the Court’s conclusion on Issue

2.

[5] It is necessary, therefore, to set out in a little more detail the basis on which the Court reached its two conclusions on that issue. In particular, its primary conclusion that the information contained in the client list was not personal information about Mr Geary.

[6] Mr Geary had been disciplined by the Board for his counselling of complainant X. He was found guilty of professional misconduct and conduct unbecoming of a psychologist, and fined $9,000. An appeal to the High Court resulted in the conduct unbecoming charge being set aside. The finding of professional misconduct (inappropriate disclosure of details of rapes and sexual abuse known to him through his professional relationships) was upheld. The fine was reduced slightly to $8,000.

[7] In the course of preparing for the disciplinary hearing the Board’s prosecutor sent complainant X a copy of a letter that Mr Geary said he sent his ACC clients. She was one of them. The prosecutor wanted to confirm whether she had received a copy of it in 2002. Inadvertently he attached a copy of Mr Geary’s full ACC client

list. Ms X contacted some of those people. One of the claims brought by Mr Geary against the Board (and which was heard in the Human Rights Review Tribunal in

2011) concerned the release of that client list to Ms X.

[8] The Tribunal held that the release of the client list to Ms X did not contravene principle 11. It held that the prosecutor was independent of the Board, and so the disclosure was not made by the Board at all. Secondly, if it was made by the Board then it was made by the Board in its “judicial function”, and the exception in s

2(1)(b)(viii) of the Privacy Act 1993 applied. Thirdly, and again in the alternative, disclosure of the list to Ms X was “necessary” for the conduct of proceedings before the Tribunal, so the exception in principle 11(e)(iv) applied.

[9] The Court considered that none of these three conclusions by the Tribunal could be sustained – for reasons given in our judgment at [54] to [64]. In short, we held that the prosecutor’s actions could not be detached as a matter of law from the Board (the prosecutor continuing to be the Board’s agent). Secondly, the prosecutor’s actions could not be regarded as part of the Board’s “judicial function”. Thirdly, the disclosure of the client list to Ms X was not necessary – and indeed was unwitting.

[10] Because the Court took those views of the Tribunal’s reasoning, it was necessary to reconsider the original premise of the Board’s conclusion: i.e. that the client list was “personal information about [Mr Geary]”. We were surprised at the time that the client list was not put in evidence, so that this premise was not

evaluated directly by the Tribunal.[2]

[11] The Court asked for and reviewed the client list. It sought further submissions on its status. Ultimately the Court concluded that the client list was not personal information about Mr Geary. Its reasoning may be found at [46] to [53] of

_{the judgment. In essence the Court’s reasons were:}

(a) the question of whether the list was “information about an identifiable individual” (i.e. Mr Geary) was fundamentally a factual question, requiring analysis of text and context in a pragmatic manner (applying Sievwrights v Apostolakis).[3]

(b) Mr Geary was the health professional who had compiled the list. The subject matter of the list concerned his patients. The information was not personal information about Mr Geary. It was a compilation of personal information about his clients. He was not named on the list, and apart from the clients’ names, the information was meaningless to a member of the public (or the Court), being coded information about patients, rather than Mr Geary.

Requirements for leave

[12] Leave to appeal in the present case is governed by s 124 of the Human Rights

Act 1993. The requirements for grant of leave are:[4]

(a) the question posed is one of law;

(b) questions capable of bona fide and serious argument;

(c) the appeal involves some interest, public or private, of sufficient importance to outweigh the delay in cost of a further appeal.

[13] Somewhat surprisingly, the Board did not oppose the application for leave and abides the Court’s decision. Written submissions were received, also, from the Director of Human Rights Proceedings (who will be entitled to be heard on the appeal, by virtue of s 86 of the Privacy Act 1993). The Director supports the grant of

_leave.

Is the question posed one of law?

[14] The question posed by Mr Geary, which he wishes the Court of Appeal to pronounce upon, is:

Whether the High Court correctly interpreted the concept of “personal information” in the Privacy Act 1993.

That meets the requirement for a question of law. The factual context is clear, and the interpretation and application of a statutory provision to a settled fact pattern is a question of law for present purposes.

Is the question posed capable of bona fide and serious argument?

[15] I need not spend a great deal of time on this aspect. While the conclusion reached by the Court on this issue is one on which all three members had a clear view after careful consideration, I accept that another view is capable of being advanced on a bona fide and serious basis. It is enough to demonstrate that to note that the position taken by the Court does not seem to have occurred to the Tribunal, which adopted (without discussion in its decision) the interpretation advanced by Mr Geary.

Does the question posed involve some interest public or private, of sufficient importance to outweigh the delay and costs of a further appeal?

[16] For Mr Geary, it is said by Mr Beck that this Court has taken a restrictive view of “personal information” (by implication a “qualified” view, in the sense used by Tipping J in Harder v Proceedings Commissioner),[5] that such an approach is controversial in the jurisprudence and commentaries on the Act, and that this provides a valuable opportunity for analysis by the Court of Appeal “beyond the confines of this case, and would be of general importance for privacy law jurisprudence”. The Director of Proceedings submits to similar effect, noting that the “uncertainty” created by Harder (and added to by the present decision) needs to

_{be addressed anew by the Court of Appeal.}

[17] There are perhaps two significant considerations to the contrary. The first is the very unusual factual context. Research by counsel and the Court was unable to locate any authority of any relevance on the public law privacy treatment of client lists in any jurisdiction. That I suppose might be a point in favour of leave, but it is also indicative of the fact that the issue has arisen in a riverine backwater away from the main currents of privacy analysis. The list’s content is unusual also: identifiable by patient name only but thereafter expressed in code unintelligible to any member

of the public (“meaningless to a non-initiate”).[6]

[18] The second is that leave is not liberally to be given under s 124, for the simple reason that by and large two full hearings in the Tribunal and High Court must suffice, and that those successful in those fora are entitled not to be dragged unnecessarily on to a third round of argument.

[19] On the other hand, however, the Board abides the Court’s decision on leave (rather than actively opposing leave), from which it may be deduced that a third round of argument does not upset it particularly. Secondly, while the results in the Tribunal and the Court are concurrent, the reasoning is not. Thirdly, if a different view is taken of the status of the client list, then Mr Geary will be entitled at the very least to a declaration that the Board’s prosecutor’s act in releasing the client list to Ms X was a breach of Principle 11. He will be entitled to vindication at least, and compensation perhaps.

[20] Having regard to these considerations, I am ultimately satisfied that interests in the appeal, both public and private, are of sufficient importance to outweigh the delay and cost of a further appeal.

Result

_{[21] Leave to appeal granted.}

Solicitors:

Gault Mitchell, Wellington for Appellant

_{Minter Ellison Rudd Watts, Wellington for Respondent}

Stephen Kós J

[1] _{Kós J, Ms Ineson and Ms Davies: Geary v New Zealand Psychologists Board [2012] NZHC 384.}

[2] At the hearing of the leave application, however, Mr Beck explained that the reason for that was that everyone simply assumed that the list was personal information about his client.

[3] _{Sievwrights v Apostolakis HC Wellington CIV 2005-485-527, 17 December 2007.}

[4] Waller v Hider [1998] 1 NZLR 412 (CA).

[5] Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA).

[6] Geary v New Zealand Psychologists Board [2012] NZHC 384 at [49].