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BRYAN BOYLE v MANUREWA RSA INCORPORATED [2003] NZHRRT 16 (4 June 2003)

Human Rights Review Tribunal of New Zealand

BRYAN BOYLE v MANUREWA RSA INCORPORATED [2003] NZHRRT 16 (4 June 2003)

Last Updated: 15 August 2005

Decision No. 16/03

Reference No. HRRT 29/02

BETWEEN BRYAN BOYLE

Plaintiff

AND MANUREWA RSA INCORPORATED
Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

R D C Hindle Chairperson
W A C Abbiss Member
G Cook Member

HEARING: 9 May 2003 (Auckland)

DECISION: Issued in Wellington this 4^th day of June 2003

APPEARANCES

Mr B Boyle (plaintiff in person)
Ms S East for defendant
Ms M Donovan and Mr M desTombe for Privacy Commissioner

DECISION

Preliminary

[1]	This case concerns Principles 3 and 11 of the Privacy Act 1993 (‘the Act’). Mr Boyle’s complaints under both Principles have been investigated by the Privacy Commissioner, and it is accepted that in terms of sections 82 and 83 of the Act we have jurisdiction to deal with the case.

Factual Background

[2]	Mr Boyle joined the Manurewa RSA (which we will refer to either as ‘the club’, or as the ‘Manurewa club’ when necessary to distinguish it from other clubs) in 1992. The Act was not in force so that Principle 3 of the Act did not apply at the time.

[3]

We gather that Mr Boyle and the club have not had an harmonious relationship since he joined. The present case arises out of the way in which the club dealt with disciplinary proceedings that were taken against Mr Boyle in June 2000. But the club was anxious for us to know that was not the only disciplinary matter that Mr Boyle has faced. For all of the club’s efforts to establish that Mr Boyle was a troublesome character, however, it seems to us that the more significant point to emerge out of this evidence was that when Mr Boyle was suspended from his membership in 1998 the club did not take steps to notify any other clubs in the vicinity about the suspension (on that occasion he was suspended for 6 months). The relevance of this will become clear later in this decision.

[4]

In June 2000 Mr Boyle was the subject of a complaint relating to foul language and abusive behaviour by him whilst at the club. A disciplinary hearing was convened for 6 July 2000. Notice was sent to Mr Boyle by mail, but he told us that when he received the letter he guessed what it was and decided to return it to the club. He marked the envelope "not interested – please return to sender" and sent it straight back to the club unopened.

[5]

The disciplinary hearing took place on 6 July 2000 as scheduled. Mr Boyle did not attend. The disciplinary committee resolved that he was to be suspended from the club for 12 months. There is no record in the minute made by the disciplinary committee at the time to indicate that notification of Mr Boyle’s suspension was to be sent to anyone outside the club. A letter was, however, sent to Mr Boyle to inform him of the outcome of the hearing. The letter also notified him that he had 28 days within which to appeal should he wish to do so. Once again, Mr Boyle said that he recognised the letter for what it was and returned it to the club unopened.

[6]	Mr Boyle did not appeal the decision of the disciplinary committee. Indeed he has made it clear throughout that he has no quarrel with the way in which he was treated by the disciplinary committee on this occasion, or its decision to suspend his membership for a year.

[7]

On 14 July 2000 the secretary of the club wrote a letter to Clubs of New Zealand Incorporated and to seven clubs in its vicinity (specifically, the Manurewa Cosmopolitan Club, the Weymouth Cosmopolitan Club, the Papakura RSA, Papatoetoe RSA, Otahuhu RSA, Otahuhu Working Men’s Club and the Mangere Cosmopolitan Club). In each case, the letter read as follows:

"This is to inform you that Service Member, Mr Brian Boyle of 27 Pallant Street, Manurewa, Club No: 0122 has been suspended from the Manurewa RSA for a period of 12 months".

[8]

Clubs of New Zealand Incorporated (which was referred to at the hearing as ‘Chartered Clubs’) has been in existence in New Zealand in one form or another since the 1850’s. It is an association of clubs such as working men’s clubs, cosmopolitan clubs, RSA’s and a variety of other sporting, social and similar clubs. Chartered Clubs currently has around 330 member clubs representing a total membership in the vicinity of 245,000.

[9]

In June 2000 it was common practice for Chartered Clubs to circulate its members with lists of the names of individuals who had had their club membership suspended. Thus when it received news of Mr Boyle’s suspension Chartered Clubs added his name to then current list that was circulated to all of its members to be posted on their notice-boards.

[10]

The ostensible reason behind the publication of names in this fashion lay in the sale of Liquor Act. It was common ground that clubs such as the Manurewa club are generally only entitled to sell alcohol to their own members, guests of members (whilst accompanied by a member), and members of clubs with whom reciprocal visiting rights have been established. Thus if a member of a club were to have had his or her membership suspended but then tried to buy alcohol at another club in the pretended exercise of a reciprocal right to visit, it is possible that the club being visited might inadvertently breach the terms of its liquor licence by selling alcohol to someone it ought not to.

[11]	We accept that the concern was and is real, although the witnesses who gave us evidence could not think of any occasion on which a club had ever had its licence seriously put in jeopardy on that basis.

Mr Boyle’s complaint

[12]

The essence of Mr Boyle’s complaint concerns the Manurewa club’s notification of his suspension to Chartered Clubs and other nearby clubs in its vicinity. It was a step that he had not expected. He told us that he only found out about the notification when someone from the Otahuhu Working Men’s Club (‘the Otahuhu Club’) contacted him to say that that club had received a letter from the Manurewa club.

[13]

As it happened, Mr Boyle was also a member of the Otahuhu club. He has been a member there for about 30 years or so. His membership of the Otahuhu club and his rights to visit other clubs as a result of that membership were not affected by the notification of suspension issued by the Manurewa club. There was no suggestion that Mr Boyle ever tried to visit the Manurewa club during the period of his suspension on the basis that he was a visiting member of the Otahuhu club. Accordingly, save for the fact that he could not socialise at the Manurewa club during the period of his suspension, his rights to visit and socialise at other clubs were unaffected.

[14]

Nevertheless Mr Boyle felt that he had been singled out for unfair treatment by the Manurewa club. At the hearing he gave us the name of other members of the Manurewa club who he said had been suspended at or about the time of his suspension in 2000, but in respect of whom no notification appears to have been sent by the Manurewa club to other clubs or to Chartered Clubs. Certainly the names Mr Boyle gave us do not appear on the list of names that was circulated by Chartered Clubs in which Mr Boyle’s name appears. It was Mr Boyle’s evidence that, as far as he was aware, he was the only member of the Manurewa club that had ever been the subject of such a notification.

[15]

Mr Boyle told us that he had to endure a good deal of ‘ribbing’ over his suspension from people he met or was acquainted with. He said, for example, that there was an occasion in his barbershop when the discussion between a customer and his barber was along the lines of "how long between hair cuts (referring to Mr Boyle)?". Apparently the answer was about a month, to which the observation was "he has only got another 11 to go and he is due back in the RSA". On another occasion someone in the Manurewa Cosmopolitan Club said something to the effect of "heard you got barred from the RSA [referring to the Manurewa club]. Going to run a sweep to see how long you will last here." On another occasion he was asked at the Manurewa Wholesalers "been banned from the RSA, what did you do?"

[16]

Other examples were given besides these, but there was nothing in the evidence to connect any of this sort of teasing directly to the letters that had been sent by the club. We think it is clear that the fact that Mr Boyle had been suspended would have been known in the circles in which he moves even if the letters had not been sent.

[17]

There was nothing to suggest that the effect of his suspension went any further than these sorts of comments. Aside from being unable to socialise at the Manurewa club, there was no evidence that Mr Boyle’s activities in the other clubs of which he was a member (or in respect of which he had visiting rights) were curtailed in any way at all.

The Club’s response

[18]	Putting aside the legal issues about privacy that were argued, the club’s response to these allegations involved the following essential propositions:

(a)	Mr Boyle was not singled out for particular treatment. To the contrary, we were told that it was common practice for the club (and indeed for clubs under the umbrella of Chartered Clubs generally) to notify Chartered Clubs and clubs in their vicinity when a member was suspended;

(b)

There are good reasons for the procedure. As already noted, clubs such as these cannot sell alcohol to the general public and have an obligation to ensure that they only sell alcohol to members, guests of members (when accompanied by a member) and members of other clubs who are exercising established reciprocal visiting rights;

(c)	In any event, Mr Boyle did not suffer any sufficient injury to his feelings, humiliation, loss of dignity or any loss of a kind that might justify a finding that there had been an interference with his privacy.

[19]

We have no doubt that once Mr Boyle took his complaint to the Privacy Commissioner Chartered Clubs and the club have taken the issues raised seriously. As a result of considering the obligations created by the Act (including but not necessarily limited to the advice taken in relation to this case) we gather that Chartered Clubs has stopped its practice of circulating lists of suspended members’ names. It is also clear that a good deal of attention has been paid to the issues raised under Principle 3 in particular. As a result in October 2001 the club wrote a letter to Mr Boyle which included the following passage:

"It is clear from the discussions that we have had with the [Privacy] Commissioner’s Office that at the time that a member is suspended from a club, under Principle 3 of the Privacy Act that member should be advised that details of the suspension will be circulated to the member clubs with whom there are reciprocal visiting arrangements.

In your case, this did not happen and the club apologises to you for omitting to advise you of that fact at the time."

[20]

The letter then went on to explain the club’s reason for notifying suspensions by reference to the sale of Liquor Act. The letter concluded by asking Mr Boyle to accept the apology in the spirit in which it was given. The letter was drafted for the club by the chief executive of Chartered Clubs and in its final form it was signed on behalf of the Manurewa club by the president of the club and the club’s secretary/manager.

[21]

Mr Boyle did not accept the apology. As he read it, the letter suggested that he had tried to flout the suspension by drinking at another club during the period of his suspension. But as he pointed out in evidence, he is a member of other clubs including the Otahuhu club so he was entitled to attend that club and visit elsewhere even though he had been suspended by the Manurewa club. We do not think that the letter makes the allegation that Mr Boyle saw in it, but unfortunately Mr Boyle’s perception of it was such that in the end it appears to have been counter productive for the club to have sent it.

[22]

Finally, we were told that as a result of this case the club has amended its form for application for membership in such a way that the form now makes it clear that if a member has to be expelled or suspended by the club then the club will have the right to inform other affiliated clubs of that fact.

[23]	Against that background we turn to consider the complaints under each of Principles 3 and 11.

The complaint under Principle 3

[24]	Insofar as relevant, Principle 3 of the Act provides:

"Collection of information from subject

(1) Where an agency collects personal information directly from the individual concerned, the agency shall take such steps (if any) as are reasonable to ensure that the individual concerned is aware of –

(a)	The fact that the information is being collected; and
(b)	The purpose for which the information is being collected; and
(c)	The intended recipients of the information ...

....
(2) The steps referred to in subclause (1) of this principle shall be taken before the information is collected or, if that is not practicable, as soon as practicable after the information is collected.

[25]

The information which is the subject of Mr Boyle’s complaint is that which was provided to Chartered Clubs and the seven other clubs in the vicinity of the Manurewa club on or about 14 July 2000. The letter refers to Mr Boyle by name, identifies his street address and his club number at the Manurewa club. It goes on to say that he has been suspended from the club for a period of 12 months.

[26]	We are unable to accept that the disclosure of any of that information amounts to a breach of Privacy Principle 3.

[27]

Insofar as the letter refers to Mr Boyle’s name, his club number and his address, that information was collected by the club from Mr Boyle before the Act came into force. At least as importantly, Mr Boyle made it clear that he had no objection to the fact that he had been identified as a member of the club, or even that his address and club number had been provided. He was already either a member of, or at least known at, most if not all of the clubs that received the letters notifying his suspension. Mr Boyle did not regard the fact that he had been identified as a member of the Manurewa club as an interference with his privacy. His real concern was that the clubs had been told of his suspension.

[28]

In an effort to overcome the problem created by the fact that Mr Boyle first joined the club before the Act came into force, Ms Donovan argued that since Mr Boyle had to pay subscriptions to renew his membership at the club each year the club effectively collected the information about his name, address and (presumably) his re-allocated his club number each year – so that there was, in her submission, an annual event of collection of information by the club from Mr Boyle after the Act came into in force. That sort of argument may be available in different circumstances, but in the present case it is clear that the subscription renewal involved no more than a notification to members that subscriptions were due, followed by payment of the subscriptions due from each member. We think it is unrealistic to suggest that information which the club already held about Mr Boyle was somehow collected again just because he paid his annual subscription.

[29]	From this it follows that – putting aside the information that Mr Boyle’s membership had been suspended – there was no act of collection of personal information to which Principle 3 can be related.

[30]	We cannot see how the disclosure of the information about Mr Boyle’s suspension can give rise to a breach of Principle 3 either.

[31]

The fact that Mr Boyle had been suspended for twelve months was information that the club had because the disciplinary process against him had run its course. In fact Mr Boyle did not even attend the disciplinary hearing, so that the decision to suspend him was made in his absence. We find it impossible to see how the club can be described as having somehow ‘collected’ the information that Mr Boyle had been suspended from Mr Boyle. Even if Mr Boyle had been present at the hearing, we still cannot see how it could be suggested that by suspending him the club was engaged in a process of collecting information from him.

[32]	On behalf of the Privacy Commissioner Ms Donovan accepted that there was no ‘collection’ by the club of the information that Mr Boyle had been suspended from the club for 12 months from Mr Boyle.

[33]	For these reasons we conclude that there is no connection between the obligations imposed on the club by Principle 3 and the disclosure by the club of the fact of Mr Boyle’s suspension in 2000. The claim under Principle 3 must be dismissed.

[34]

This conclusion makes it unnecessary to deal with some of the other defences raised by Ms East on behalf of the club in respect of Principle 3. We will, however, need to return to at least two of those defences (namely, that the information at issue was not ‘personal information’ about Mr Boyle and/or that he had by implication authorised the club to disclose the suspension in the way that it did) when we deal with the complaint under Principle 11.

[35]

There is, however, one other argument we feel obliged to deal with under this heading. Specifically, there was what seemed to us to have been a rather surprising argument advanced on behalf of the Privacy Commissioner about the application of Principle 3. In this part of the argument it is necessary to proceed on the footing that there was some event of collection of information to which Principle 3 applied, but that the information that was collected could not be said to have been collected in circumstances in which Mr Boyle understood it might be used for the purpose of notifying other clubs in the case of a suspension (in which case Principle 3(1)(b) would apply) . In view of our findings these issues are not raised under Principle 3 in this case, but it is clear that the approach for which Ms Donovan contended has informed many of the things that have been done by the club since the Privacy Commissioner’s investigation began. Amongst other things, the club has offered Mr Boyle an apology which accepts the applicability of Principle 3 on that basis. We can also see that the approach has been the subject of a good deal of discussion by the club and by Chartered Clubs, and that advice about it has been disseminated to clubs under the umbrella of the Chartered Clubs organisation through at least one newsletter.

[36]	All of this notwithstanding, we disagree with the approach that has been taken by the Privacy Commissioner. Furthermore for reasons that follow we think there are real dangers in struggling to find a remedy for shortcomings in the club’s disciplinary process in Principle 3.

[37]	The argument for the Privacy Commissioner contained the following elements:

[a]	The information at issue (i.e, name, address and – arguably – the club number) was collected from Mr Boyle on each occasion that he renewed his membership, with the result that Principle 3 came into play again each year (we have already dealt with this argument above);

[b]

Even if that argument were not accepted, the obligations in Principle 3 would come into play again when the act of notifying other clubs of a suspension became a purpose for which the information was held by the Manurewa club, and the clubs that were to be notified became identified as the intended recipients of the information;

[c]	In that case the club was obliged to notify Mr Boyle of the changed purpose for which it was holding his information (the change being that it now wished to use the information to notify Chartered Clubs and other clubs in the vicinity of the fact of his suspension);

[d]

By virtue of Principle 3(2), as long as the club informed Mr Boyle as soon as practicable after deciding to notify other clubs of his suspension then there would be no contravention of Principle 3 and the club would have been free to use the information it held about Mr Boyle for the purpose of notifying other clubs of his suspension;

[e]	Since the club did not notify Mr Boyle in that way in this case, its conduct amounts to a breach of Principle 3.

[38]

In pursuing this argument Ms Donovan emphasised that the Act is not based on individual consent; in other words, that it was not necessary for the club to obtain Mr Boyle’s consent to use his information in order to notify other clubs that he had been suspended. All that the club had to do, so it was argued, was to notify Mr Boyle that that was what it intended to do before it did it.

[39]

If the matter is approached as a question of fair disciplinary procedure rather than an issue of privacy, then we can see the sense of what Ms Donovan submitted. For reasons which follow later in this decision, we have found that Mr Boyle did not know before the disciplinary hearing in July 2000 that he was in jeopardy of having the fact of any suspension notified to other clubs. Nor, in our view, is there any sufficient basis to conclude that he ought to have understood that notification would or might occur. We agree with Ms Donovan that had he known that he was at risk of having his suspension notified to other clubs, Mr Boyle might have appeared at the disciplinary hearing, or otherwise conducted himself in some different way. (That said, if Mr Boyle had been informed in the letter sent him before the hearing of the possibility of publication of any suspension, he chose to return the letter unopened and so he would not have known what it said. The club could hardly be held responsible for that).

[40]

As we have said, we accept that as a matter of fair disciplinary procedure Mr Boyle should have been informed that the fact of his suspension was going to be circulated to other clubs. In fact it seems fairly obvious that that should have happened before the hearing rather than after it. However to argue that it was just the failure to inform him that clubs were going to be notified before they were actually notified that brings the case under Principle 3 seems to us to be fundamentally wrong.

[41]

If a letter informing Mr Boyle that notice of his suspension was going to be circulated to other clubs was all that was required to comply with Principle 3 then it must follow that if such a letter had been sent to Mr Boyle then there could not have been a breach of Principle 3. Taken to its logical conclusion, it seems to us that such an approach would jeopardise the essential purposes for which Principle 3 exists.

[42]

Principle 3 sets the standard which agencies that collect personal information must meet when they are collecting information directly from an individual. A significant purpose of setting that standard is to protect the autonomy of individuals who are asked to give personal information. Putting aside circumstances where an individual is incapable of giving personal information about themselves when it is required (perhaps because of a medical emergency), in the general run of cases anyone who is asked to provide personal information to an agency must first have the information specified in Principle 3(1). Amongst other things the agency must inform the individual what the purposes for which the information is being obtained are. It must identify the intended recipients of the information. The obvious reason for these obligations is to give the individual concerned some ability to make an informed choice about whether or not to provide the information.

[43]

We accept that in general terms the Act does not depend on the need to get an individual’s consent to the disclosure or use of personal information. An agency can collect, store and deal with personal information as it sees fit as long as it complies with the Act. But a fundamental restriction on what an agency can do with personal information is to be found in the identification of the purpose or purposes for which the information is to be obtained. This requirement in Principle 3 is reflected in Principle 11 which deals with the disclosure of personal information by an agency. The first exception to Principle 11 is that information can be disclosed by an agency as long as the agency believes on reasonable grounds that it is being disclosed for one of the purposes for which it was obtained. No consent is then required at the time of disclosure. But it must in our view follow that (unless some other exception to Principle 11 applies) an agency cannot properly disclose personal information for a purpose other than one of the purposes for which the information was obtained.

[44]	It is for these reasons that we regard it as wrong to suggest that an agency might be able to comply with Principle 3 by simply informing an individual after collecting personal information that the information is going to be used for a purpose that was not identified at the time of collection.

[45]

We suggest an example to illustrate the point. Suppose an individual is asked to give personal information for purposes (a) and (b). At some later time, after the information has been collected, it would suit the agency to use the information for a different purpose, purpose (c). If the argument advanced for the Privacy Commissioner is accepted, then all that the agency would have to do is to notify the individual in advance of using the information for purpose (c) that it was going to do so. It would not matter that the individual objected. Nor could the individual ask to retrieve the information rather than have it used for the new purpose; the agency already has the information. The individual could not be heard to say ‘you can’t use the information for purpose (c) because I did not give it to you for that purpose’.

[46]	If accepted, it seems to us that such an approach would represent an unfortunate in road into the protections for individual autonomy and control of personal information which lie at the heart of the Privacy Act.

[47]	For these reasons we do not believe that the club could have legitimised its use of any personal information that it held about Mr Boyle’s to communicate the fact of his suspension to other clubs and to Chartered Clubs by simply notifying him that it was going to do so before doing so.

[48]

Although this would not have cured the problem faced by the club in Mr Boyle’s case, it seems to us that if the club wished to be able to circulate information about suspensions in future then the proper course would be to set about changing the club’s rules of membership in such a way that it is made explicitly clear that the club would be entitled to use personal information for such a purpose. If that were carried into effect by way of a constitutionally valid amendment to the club’s rules then it would be possible to say that members must be taken to have accepted the change. A member who was sufficiently concerned would of course ultimately have the option of resigning from the club. In fact, as we have noted above, we understand that the club has changed its application forms since this incident in such a way that it is now explicitly clear to any new member on joining that if they are expelled or suspended then that fact can be notified to affiliated clubs.

[49]

There was an issue under Principle 3 as to whether notification of Chartered Clubs and other clubs in the vicinity was a purpose for which the membership information was collected, or whether it was directly related to such a purpose. For reasons set out below we have held that it is not, but we wish to make it clear that even if we are wrong in that conclusion our concerns about the way in which the Privacy Commissioner has approached Principle 3 in this case would remain.

Principle 11

[50]	Principle 11 concerns the disclosure of information. Insofar as relevant to the present case, the Principle states:

"Limits on disclosure of personal information.

An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds, -

(a)	That the disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained;
(b)	...
(c)	...
(d)	That the disclosure is authorised by the individual concerned ..."

[51]

It was not suggested that the club is not an agency to which Principle 11 applies. Ms East did argue, however, that the information that Mr Boyle had been suspended from the club for 12 months was not ‘personal information’ within the definition of those words in section 2 of the Act. In support of her argument she referred us to an observation of the Court of Appeal in Harder v The Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 (at page 89 para 23). The Court of Appeal was considering the application of Principle 3 to a tape recording of a telephone conversation between a lawyer and a witness, where the witness concerned was not aware that the conversation was being taped. The majority of the Court made the following observation about the words ‘personal information’:

"It is, in the circumstances, unnecessary to address the personal information issue. The case does not turn on this point which must remain open for determination when it directly arises. Nevertheless we consider it appropriate to make the following observations. The information privacy principles are all concerned with personal information. That concept is a central feature of the Act. An unqualified approach to what constitutes ‘information about an identifiable individual’ will lead readily to breaches of one or more of the information privacy principles. It is a feature of the Act that there can be a breach of an information privacy principle, yet whether that breach becomes an interference with privacy in terms of section 66 is dependent on the opinion of the Commissioner or the tribunal as to whether the action of the alleged contravener has had one or more of the results referred to in section 66 (1) (b). The approach of the Commissioner and the tribunal in the present case does not suggest that this provision has been viewed alongside the balancing provisions of section 14(a). They require the Commissioner, and impliedly others involved in the interpretation and administration of the Act, to have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way. Those concepts are thus relevant to the scope of the definition of personal information".

[52]	The definition of "personal information" in section 2 of the Act is as follows:

"Personal information means information about an identifiable individual; and includes information relating to a death that is maintained by the Registrar-General pursuant to the Births, Deaths and Marriages Registration Act 1995, or any former Act:...."

[53]

Section 14 (a) of the Act appears in Part 3 of the Act, which establishes the office of the Privacy Commissioner and identifies his functions. No fewer than 21 functions are identified. We do not think it unfair to summarise them as placing an emphasis on education, reporting, research, soliciting representations, consultation and so on. Against that very wide background of functions, section 14 provides:

Commissioner to have regard to certain matters

In the performance of his or her functions, and the exercise of his or her powers, under this Act, the Commissioner shall--

(a)	Have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way; and

(b)	Take account of international obligations accepted by New Zealand, including those concerning the international technology of communications; and

(c)	Consider any developing general international guidelines relevant to the better protection of individual privacy; and

(d)	Have due regard to the information privacy principles and the public register privacy principles.

[54]

The way in which the Court of Appeal has addressed the issue suggests that the words ‘personal information’ ought to be read down in some way, although it is not clear exactly how that should be done. It remains to be seen what the effect of these provisions (and, indeed, all of the other provisions of the Act) will be held to be in respect of the correct interpretation of the words when the subject is next dealt with by the Courts.

[55]

The issue is important since, as the Court of Appeal decision recognises, the idea of ‘personal information’ is one that is central to the Act. It may be that when the issue is dealt with again, the Courts will reach a conclusion that it would be better not to read the words down because there are sufficient checks and balances elsewhere in the Act to ensure that the Act can be applied in a pragmatic way, and without having to limit its scope by giving the words ‘personal information’ a restricted meaning of some sort. Certainly there seems to be room for the view that the observation by the Court of Appeal may warrant reconsideration when the opportunity next arises: see generally the commentary in Roth, Privacy Law and Practice at para 1002.10. We also note that two of the five Court of Appeal judges in Harder preferred not to subscribe to the observation made by the majority.

[56]

In the meantime it falls to us to decide whether the information at issue in this case (i.e., the fact that Mr Boyle had been suspended) is personal information of a kind that falls within the meaning of the words ‘personal information’ in the Act. We are unable to detect any policy reason arising out of a consideration of section 14(a) that requires us to read the definition in such a way as to exclude the information at issue in this case. The fact that Mr Boyle had been suspended is plainly information about Mr Boyle, who is of course an identifiable individual.

[57]

After it had suspended Mr Boyle the club held that piece of information about him (i.e., that he had been suspended). The club was then obliged to treat the information in accordance with Principle 11. It was not at liberty to disclose the information unless it believed, on reasonable grounds, that one or more of the exceptions provided for in Principle 11 applied.

[58]	Only two such exceptions were suggested by the club to be relevant in the present case.

[59]	The first was exception 11(a), namely that the disclosure of the information was one of the purposes in connection with which the information was obtained, or was directly related to the purposes in connection with which the information was obtained.

[60]

We have found it awkward to apply the exception because it refers to the purposes for which information has been ‘obtained’. One can certainly say that the club ‘obtained’ the information that Mr Boyle was suspended for twelve months when it suspended him; but we were left in some doubt as to whether it can really be said that the information was obtained with any specific purpose that is referable to Mr Boyle. The information about his suspension was a fact. As we have already said, it is not as if the club ‘collected’ the information from Mr Boyle – in reality the information was generated within the club when the disciplinary committee made its decision.

[61]

The essence of Ms East’s argument in this respect was that the purpose for collection of the information to which we should direct ourselves was one related to the disciplinary process itself. It was argued that notification of other clubs and Chartered Clubs was a purpose that was sufficiently directly related to the disciplinary proceedings to come within the Principle 11(a). Putting aside our concern that it is somewhat awkward to describe the obtaining of this information as having been referable to any purpose that Mr Boyle would have accepted, we were not in any event persuaded that the subsequent step of notifying other clubs or Chartered Clubs can be regarded as having been sufficiently related to the purpose for which the club ‘obtained’ the information.

[62]

First and foremost the disciplinary process is a matter between the club and its members, to be dealt with according to the club’s rules and its constitution. It was common ground that, prior to the amendment of the membership application forms (which occurred after the Privacy Commissioner commenced his investigation in this case) there was nothing in the materials that related to the commencement of Mr Boyle’s membership, or in the club’s constitution, or in its rules which expressly stated that if there were to be a suspension or expulsion then other clubs would or might be notified. Disciplinary processes such as the one in question in this case are about the internal management of the club, and its relationship with its own members. We do not see notification of other clubs as being either a necessary or unavoidable part of that. To the contrary, the main purpose of notifying other clubs appears to have been something in the nature of a courtesy, i.e. to warn them so that they were not at risk of inadvertently infringing their liquor licensing requirements. Furthermore, for reasons that follow, it was clear to us that the club did not have anything like a standard practice when it came to notifying other clubs or Chartered Clubs about suspensions. The fact that the club did not notify each and every suspension sits uneasily with the assertion that notification in the case of suspension was one of the purposes for which the information was obtained.

[63]	For these reasons we are not persuaded that notification of other clubs is a purpose that is sufficiently directly related to the disciplinary process that it ought to be regarded as being protected by the exception in Principle 11(a).

[64]	The second exception relied upon by the club was Principle 11(d) which effectively permits an agency to disclose information if the agency believes on reasonable grounds that the disclosure is authorised by the individual concerned.

[65]

Mr Boyle was adamant that he had never authorised the disclosure of information about his suspension to anyone. The club accepted that it had no express authority of any kind, but argued that in the context of membership generally there was an implicit authorisation because notification of a suspension is the sort of thing that a member can be taken to be aware of and have accepted by being a member of the club. In large part, the club’s argument in this respect depended on an assertion that it was common practice to notify other clubs of any member suspensions, and that Mr Boyle either knew that or should be taken to have known and accepted it.

[66]	We have already noted that Mr Boyle firmly denied any such practice existed, much less that he could be taken to have known of one or accepted it.

[67]

Evidence as to the relevant practice was given by all of the witnesses who gave evidence for the club. The current president of the club confirmed evidence given by other witnesses, and said that it had always been his understanding that it was common practice for clubs to communicate expulsions and suspensions to other affiliated clubs, and that was generally known amongst club members. The chief executive of Chartered Clubs (who has held that position since 1991) also said in evidence that in his experience the practice of clubs advising member suspensions to other clubs with reciprocal visiting rights was one that had been in place for many years and that it was (at least in his opinion) common knowledge amongst club members. The secretary/manager of the club agreed with that evidence. He stated that he had always understood that suspensions and expulsions were notified to affiliated clubs and that, in his experience, members were aware of the practice.

[68]

We are not concerned in this case with wider question of whether members of other clubs throughout New Zealand might generally be aware of a practice in which notification of suspension is given to other clubs. Our focus is whether or not there is a sufficient evidential foundation from which to infer that in respect of his membership of the Manurewa club, Mr Boyle understood and accepted that his suspension would be notified to other clubs.

[69]	The evidence offered by the club in this respect did not withstand scrutiny. Instead it seems clear to us that whatever practice has been adopted by the Manurewa club it is one that can at best be described as having been applied in an ad hoc and variable fashion.

[70]

It was accepted, for example, that when Mr Boyle was suspended for six months in 1998 there had been no notification to any other club or to Chartered Clubs. At various points in the evidence it was suggested that the trigger point for notifying other clubs was something over one month, three months, six months, nine months and twelve months. There was no consistency in the evidence. If the club has a policy as to when the length of suspension will trigger notification to other clubs then it was not explained to us.

[71]

It seemed likely that if the club had indeed had a practice of notifying other clubs of the suspension of Manurewa club members then there would be a file or files with copies of the various notifications that had been sent out. When questioned about this the club’s secretary/manager began by saying that he felt sure he had a few such examples at the office. When pressed, however, he said he could not be confident that there were any such letters on file. He explained that some years ago the club had had advice from Chartered Clubs to the effect that documentation relating to disciplinary matters ought to be destroyed as soon as the disciplinary process was complete As a result he has destroyed any copies of other notifications by the club of suspension of members. The secretary/manager told us that the only reason the copies relating to Mr Boyle’s suspension remain was because he (Mr Boyle) had complained to the Privacy Commissioner so that it has been necessary to keep the file open, and retain the records, until that process had been completed.

[72]

In his evidence the chief executive of Chartered Clubs confirmed that some years ago (before the complaint in 2000 as a result of which Mr Boyle was suspended) he advised clubs that since disciplinary matters often raised issues of privacy it would be prudent to destroy records such as these once the disciplinary process was completed.

[73]	Whatever the rights or wrongs of that approach to document management may be, the consequence is that there was no evidence of any other letters notifying suspension or expulsion of Manurewa club members save for those which relate to Mr Boyle.

[74]

In addition to the concerns created by this state of affairs, when pressed both the club president and its secretary/manager accepted that in fact not all suspensions were notified. Apparently the club takes the view that for suspensions of a shorter period there is nothing to be gained by formally notifying other clubs or even Chartered Clubs. In some cases it is possible that a period of suspension (say, for less than a month) will be over before the time within which a member can appeal has expired. We are not certain how effective the appeal right is in circumstances where such a suspension takes immediate effect, but in those cases it is clear the actual practice of the club was not to notify other clubs or Chartered Clubs.

[75]

In the end, we were left with the clear impression that there is considerable variation in the way the club has approached the question of notifying suspensions to Chartered Clubs and to other clubs in its vicinity. Furthermore, although the club’s secretary/manager told us that the decision to notify other clubs was one which would have been made by the disciplinary committee, there is no reference to notification of Mr Boyle’s suspension in the minutes of the disciplinary committee that dealt with this case.

[76]

We find that there was no common practice at the Manurewa club about the notification of suspensions to other clubs or to Chartered Clubs. There is no basis on which we can infer that Mr Boyle knew of (much less accepted) such a practice when it was so inconsistently understood by the witnesses who gave evidence for the club. Indeed we were left with some sympathy for Mr Boyle’s concern that he may have been singled out for special attention by the club in the way his case was handled.

[77]	On any view the evidence provided by the club fell well short of establishing any basis on which to conclude that the exception in Principle 11(d) applies in this case.

[78]	For these reasons we have concluded that the club’s notification about Mr Boyle’s suspension to Chartered Club’s and other clubs in its vicinity was a breach of Principle 11.

Was there an interference with privacy?

[79]

The Tribunal’s power to award a remedy in any privacy case depends upon a finding that there has been an interference with the privacy of the plaintiff. The words ‘interference with privacy’ are defined in section 66 of the Act. It is common ground that in the case of a breach of principle 11, one of the elements that must be established is that of harm (to use a general word) of a kind specified in section 66(1)(b) of the Act.

[80]

We do not think it can persuasively be argued that as result of the notification letters that were sent out by the club Mr Boyle suffered any damage of a kind contemplated by section 66 (1)(b)(i). There was, after all, no challenge to the club’s decision to suspend him. He cannot claim his inability to visit the club involved any loss in the circumstances. Nor is there any evidence that any of the clubs that were notified subsequently refused to allow him to visit their premises. Indeed in the case of the Otahuhu club it is clear that Mr Boyle continued to attend as he was entitled to do throughout the period of his suspension by the Manurewa club. Thus the same conclusion seems to us to apply to the kinds of damage contemplated by section 66 (1)(b)(ii).

[81]	In our view the only real question is whether Mr Boyle has suffered "significant humiliation, significant loss of dignity, or significant injury to [his] feelings..." in terms of section 66(1)(b)(iii) of the Act.

[82]

We have referred to the evidence Mr Boyle gave as to comments that he had to suffer in relation to his suspension. On the other hand he accepted that a certain amount of that kind of teasing would have been inevitable because of his suspension, whether or not the suspension was notified in the way that it was. He told us that he spoke about it to others, and of course members of the Manurewa club who were used to seeing him there would have known from his absence that something had happened.

[83]

It is clear that to satisfy the requirements of section 66 (1)(b)(iii) any humiliation, loss of dignity or injury to feelings must be more than the ‘ordinary’: Hadfield v Westpac Trust Decision 28/99 dated 20 October 1999. We also refer to the Tribunal’s decision in Mitchell v Police Commissioner (Decision 33/99 dated 26 October 1999) in which the Tribunal commented "we accept the test remains a subjective one. A plaintiff is, however, required to satisfy us that the harm suffered was greater (or more significant) than usual".

[84]

Mr Boyle gave evidence that he had a similar experience of teasing comments when he was suspended for six months in 1998, even though on that occasion the club did not send any notification letters. If we take the injury to feelings that Mr Boyle experienced in 1998 when he was suspended as being the ‘usual’ level of such injury to feelings, then the evidence has not satisfied us that the notification of Chartered Clubs and the other clubs in respect of his 2000 suspension was significantly greater. We do not doubt that he did suffer some modest injury to his feelings. However Mr Boyle struck as a robust individual who was fully capable of dealing with the sort of teasing that he got from those who knew of his suspension. More importantly, there was nothing in the evidence to establish that but for the letters sent by the club Mr Boyle would not have had to suffer the teasing that he experienced after suspension. We are unable to conclude that any injury caused by the fact that the club sent out the notification letters is sufficiently significant to justify a finding of interference with privacy in terms of section 66 of the Act.

Summary

[85]	For the foregoing reasons we have concluded that in circulating the letters about Mr Boyle in July 2000:

(a)	The club did not contravene Privacy Principle 3;

(b)	The club did contravene Privacy Principle 11, but

(c)	There was no sufficient injury or damage of any of the kinds identified by section 66(1)(b) of the Act to support a finding that there has been an interference with Mr Boyle’s privacy.

[86]	It follows that Mr Boyle’s complaint must be dismissed.

Costs

[87]

The question of costs remains to be dealt with. Although the club has succeeded in the outcome, we have found that its circulation of letters about Mr Boyle’s suspension in 2000 was a breach of Principle 11. We were also less than impressed with the evidence that was given on behalf of the Club about its so-called standard practice in respect of notifying other clubs or Chartered Clubs of members’ suspensions.

[88]	In the circumstances we direct that costs are to lie where they have fallen.

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R D C Hindle – Chairperson

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W A C Abbiss – Member

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G Cook – Member