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You are here: NZLII >> Databases >> Human Rights Review Tribunal of New Zealand >> 2004 >> [2004] NZHRRT 48

CBN v McKENZIE ASSOCIATES [2004] NZHRRT 48 (30 September 2004)

Last Updated: 2 December 2004

Decision No. 48/04

Reference No. HRRT 020/04

BETWEEN CBN

Plaintiff

AND McKENZIE ASSOCIATES

Defendants

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Ms P J Davies Member
Mr G J A Kerr Member

HEARING: 23 and 24 August 2004 (Invercargill)

APPEARANCES:

Plaintiff in person

Ms S L Gray for defendant

Dr P Roth for the Privacy Commissioner

DECISION GIVEN ORALLY: 24 August 2004

DECISION ISSUED IN WRITING: 30 September 2004

DECISION

Introduction

[1] This case draws attention to an aspect of the application of the Privacy Act 1993 (‘the Act’) which is of some significance to those engaged in private legal practice. In short, it is no answer to a request by a client or former client for access to personal information held about him or her to say that the file at issue is protected by a lien for unpaid costs.

[2] That was the position taken by the defendants in this case when the plaintiff asked for a copy of his file in November 2002. But by the time of the hearing in the Tribunal the defendants had come to accept that they ought not to have responded in the way that they did. As a result, although there was some discussion at the hearing about to the extent to which the Act applies in these kinds of cases, the defendants conceded that they had failed to comply with the obligations imposed on them by Principle 6 of the Act.

[3] The defendants did, however, dispute the plaintiff’s assertions as to the harm he claimed to have suffered as a result. The real issue in the case is whether and to what extent the plaintiff should be compensated for the humiliation, loss of dignity and injury to his feelings arising out of the admitted breach of the Act.

Preliminary Matters

[4] There are some preliminary matters to be dealt with.
[5] For a period before November 2002 the defendants acted for the plaintiff in connection with proceedings in the Family Court. Those proceedings concerned the care and protection of the plaintiff’s young son while he (the son) was in his mother’s care. A good deal of the evidence given by the plaintiff related to his concerns for his son. As a result the case cannot be dealt with without giving some information about the son.
[6] At the commencement of the hearing Dr Roth submitted that there should be an order to protect the anonymity of the plaintiff’s son. The defendants agreed, and so do we. Indeed this is one of those cases where we regard it as appropriate to protect the anonymity not only of the son but also of his parents who, despite their former differences, both gave evidence at the hearing. We do not extend the name suppression orders to cover the parents for their own sake, but because to do otherwise could lead to identification of the son.
[7] Having regard to the authorities discussed in the recent case of B N K v Trainor (HRRT Decision 18/04; 17 May 2004) we are satisfied that the interests of the son in this case are such as to outweigh the public interest in openness in the conduct of proceedings in the Tribunal. Pursuant to section 107(3)(b) of the Human Rights Act 1993 we therefore direct that there is to be no publication of the name of the plaintiff, his son or his ex-wife (i.e., the mother of the plaintiff’s son), or of any details that might serve to identify any of them in connection with this litigation. This is a permanent order. As an added protection we also direct that the Tribunal’s file in this matter is not to be searched by anyone other than the parties without the leave of the Chairperson of the Tribunal.
[8] The plaintiff will be identified by the letters ‘CBN’ in the intituling to this decision. Those are not his initials.
[9] Aside from the question of name suppression, we record that the matters raised by the claim have been the subject of investigation by the Privacy Commissioner. It was accepted that in terms of sections 82 and 83 of the Act we have jurisdiction to deal with the case.

Background

[10] It is convenient to set out some more background.
[11] The plaintiff instructed the defendant firm to act for him in October 2001. By November 2002 the plaintiff was indebted to the defendants for legal services in a sum of about $2,000. Attempts to put progress payments in place had been made but were unsuccessful. The plaintiff accepted that as at November 2002 he was and had been behind in his payments to the firm for some time.
[12] At the time the care and protection issues in the Family Court were ongoing. The plaintiff began considering the possibility of relocating from Invercargill to Christchurch in order to try and ameliorate his concerns for his son’s safety. The focus of these developments was a judicial issues conference that was convened in the Family Court on 26 November 2002. We were shown a report written by counsel appointed to represent the son in the family proceedings, and in which it is recorded that a report under section 29A of the Guardianship Act 1968 was to be prepared. The plaintiff was to have until 20 December 2000 to file any affidavits in relation to the relocation issue. The Court’s timetable also provided that his former wife was to have until 31 January 2003 to respond.
[13] On 28 November 2002 the plaintiff telephoned the defendants to set up an appointment to see the solicitor who was handling his case about preparing the affidavits. She declined to meet with him, saying that she would not do so unless his account was paid in full. Instalment payments would no longer be acceptable.
[14] At that point the plaintiff asked if he could uplift his file. He was told that he could not do so until all outstanding accounts had been cleared.
[15] We pause in the narration of the facts to make some observations about this exchange.
[a] The discussion on 28 November 2002 appears to have been accepted on all sides as an effective request by the plaintiff under the Act for access to personal information. It is clear from Principle 6 itself that no particular formality is required for such a request and, in particular, that there is no need for the request to be in writing. The request in this case was never reduced to writing;
[b] The request was for the plaintiff to have a copy of his file. At the time, the file comprised some 400 pages so that there would have been a cost and some effort involved in that. There is nothing in the evidence to suggest that either the plaintiff or the defendants at that time considered other options for providing access to the information, for example, by providing the plaintiff with an opportunity to inspect the file or by giving an excerpt or summary of particular information from the file: see section 42(1) of the Act;
[c] The evidence establishes that the plaintiff asked for a copy of his file. Principle 6(1) however, is expressed as follows:

"Access to personal information

(1) Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled--

(a) To obtain from the agency confirmation of whether or not the agency holds such personal information; and

(b) To have access to that information."

We think there is a difference between a request for a copy of a file and a request for access to personal information. We will return to the subject below.

[16] Much of the evidence filed by the plaintiff in advance of the hearing and as given in his evidence-in-chief described harm that was said to have been suffered by his son as a result of the defendant’s refusal to copy the file for him. But whatever the rights and wrongs of that may be, this case is about the privacy of the plaintiff, not his son or anyone else.
[17] No doubt appreciating the shortcomings in the plaintiff’s evidence as to what the consequences have been for him, at the hearing Dr Roth asked him to describe how he had felt when told he could not have a copy of the file. The plaintiff said that at the time he was very anxious about his son and what might occur to his son if he were not able to take steps to improve his (the son’s) position. He saw the defendants’ conduct as high-handed and obstructive. He felt that the defendants were behaving in a deliberate manner, and he was left with a sense of powerlessness, frustration and anxiety. At other points of his evidence the plaintiff described his reaction as having been ‘absolutely gutted’. He felt that his case in the Family Court had ‘fallen to bits’ and that he had ‘hit a brick wall’ and had no options left. He gave evidence to the effect that his performance in his job was adversely affected.
[18] We return to the chronology of events.
[19] After the defendant refused to copy the file for the plaintiff, the plaintiff took advice from someone at the Southland District Law Society and also from the local Community Law Centre. Apparently he was told that the defendants could not legally prevent him from obtaining a copy of the file. He therefore returned to the defendants and repeated his request, by this time offering to pay for all copying costs. Again he was told that he could not have the file. He said that the lawyer who was involved said to him that she did not care that he may have had different advice, and illustrated the firm’s position by saying, ‘If you get your car fixed you don’t get it back until the account is paid in full.’
[20] Although the plaintiff said he had trouble finding a new lawyer, he accepted that within two weeks of 28 November 2002 he had instructed someone else. Clearly the new lawyer did not regard the business of obtaining the file regarding the plaintiff from the defendants as a first priority. She took the view that the next significant step in the litigation would be the preparation of the section 29A report. She told the plaintiff that the information that was on the defendants’ file for him would, or might, become useful if affidavits were required should the matter go to a hearing at some future stage. Clearly she felt it was too soon to say whether or not that would ever eventuate. The process of initiating and supervising the preparation of the section 29A report was something for which counsel for the child was responsible, not the plaintiff or his lawyer. In the meantime, the plaintiff was to pursue the question of obtaining his file from the defendant on his own.
[21] The plaintiff was asked during the hearing why he did not simply obtain the information from the Court file. He told us that the charge for copying documents on the Court’s file at the time was $5 per page, and that with 400 or so pages he simply could not afford to do that.
[22] On 28 February 2003 the plaintiff wrote to the Privacy Commissioner to enlist his support, but as far as we can tell the involvement of the Southland District Law Society ultimately overtook the efforts by the Privacy Commissioner because in early June 2003 (and as a result of input from the Law Society) the file was made available to the plaintiff.
[23] There had been some correspondence in the intervening period (i.e., between 28 November 2002 and early June 2003) about the proposed section 29A report. The plaintiff was represented in that correspondence by his new counsel. He has not complained that he was in any way compromised in that exchange because he did not have his file from the defendant.
[24] In due course a memorandum was filed in the Family Court on 27 August 2003 regarding the section 29A procedure, and a Court-approved psychologist was asked to prepare a report. The report was received in February 2004. The plaintiff seems as a result of that report to have accepted that his initiative for relocation would not succeed. He also accepted the need to have an end of the fighting between he and his former wife in the interests of his son. We are pleased to record that by late February 2004 the plaintiff felt able to withdraw the applications for relocation and change of care arrangements, and the Family Court proceedings were brought to an end.
[25] As a result the affidavits that had been required by the Court at the 26 November 2002 conference were never prepared or filed.
[26] The investigation by the Privacy Commissioner regarding the consequences of these events continued. We were not shown all of the correspondence arising out of that, but we do need to mention an exchange in July and August 2003 that may have some bearing on the question of remedy. In particular, on 30 July 2003 the defendants wrote to the Privacy Commissioner to say that they would apologise to the plaintiff for what had happened, but would not pay any compensation. That information was passed on to the plaintiff, although we do not know in exactly what terms.
[27] However on 4 August 2003 the plaintiff wrote to the Privacy Commissioner saying he was happy to learn that the defendants would apologise, but expressing concern about their position aside from that. Curiously, the next letter in the chain that we were shown is one dated 6 August 2003 from the Office of the Privacy Commissioner to the defendants which says, amongst other things, that the plaintiff had accepted the defendants’ apology.
[28] This gave rise to a misunderstanding that persisted to the hearing. The defendants thought that an apology had been accepted. The plaintiff said no apology had ever been received. On the information available to us we are bound to say that the cause of this miscommunication appears to have been the way in which the Privacy Commissioner’s Investigating Officer chose to report the position of one party to the other. In this respect the case is a lesson in the need for clear and accurate reporting of the position of one side to another in the process of a negotiation such as this was. This problem would not have occurred at all if the Privacy Commissioner had simply shown copies of the letters being received from one side to the other. We gather that is not a practice that is always or even regularly adopted.

The extent of the defendants’ default

[29] As we said, by the time of the hearing in the Tribunal the defendants accepted that they should not have dealt with the plaintiff’s request of November 2002 as they did. They acknowledged that a breach of Principle 6 had occurred, and that the Tribunal was empowered to award a remedy. The thrust of the defendants’ case was that, even so, no monetary remedy should be granted because no harm had really been done. In particular, the defendants argued that ultimately the need to file the affidavits which had prompted the access request had been overtaken by subsequent events in the Family Court litigation.
[30] Although the defendants did not take the point (and when raised, did not press it) we have some reservations about the extent of their default in this case. It will be remembered that what the plaintiff asked for was a copy of his file. We were not shown the file, and cannot say how the documents on it might have been classified. But the plaintiff accepted that it contained a number of different kinds of information. There was, for example, information about his former wife (the mother of his son) and in particular information about her living arrangements and the circumstances into which his son was placed whenever he was in her custody. There would also have been information about the mother’s new partner and, perhaps, information dealing with the plaintiff’s concerns about how his son might be treated by that man. Last but not least, there would also have been information about the plaintiff himself.
[31] Insofar as the file comprised information about the plaintiff, much if not all of it would of course have come from him in the first instance. He knew things like where he was living, and about previous Court matters that he had been involved in and which might count against him when it came to considering issues like relocation. The significant point however, is that the file was made up of different kinds of information, not all of which would in or of itself have been information ‘about’ the plaintiff.
[32] In this context some definitions are significant: Specifically, section 2 of the Act defines ‘personal information’, ‘individual’ and ‘individual concerned’ 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."

"individual means a natural person, other than a deceased natural person."

"individual concerned, in relation to personal information, means the individual to whom the information relates."

[33] Dr Roth submitted that even if information is not in or of itself information about an individual, it can and does become personal information to which the individual concerned is entitled to have access if it is referenced to that individual. It was his position that, if the defendants’ file was kept in the name of the plaintiff, then everything on it related to him and thus became personal information about him. As a result it was submitted that he was entitled to seek access to the file under Principle 6 in its entirety no matter how the information that was on it might otherwise be classified.
[34] In support of the argument Dr Roth submitted that if that were not so, then an agency holding information would on receipt of an access request be obliged to go through its file to decide what was or was not personal information regarding the requester. That could give rise to a situation in which the agency was in a position of having to judge information on its own files. Dr Roth referred us to section 42(1)(b) of the Act which provides that access requests can be complied with by providing copies of documents. He also referred us to the commentary in Butterworths Privacy Law and Practice at para 1.002.10 (page C/46 & 47 ‘Information comprised in documents’). The passage begins by referring to Privacy Commissioner’s Case Note 5169 in which the Privacy Commissioner recorded a view that TVNZ could properly decline to give access to background videotapes that did not contain any images of the requester or any voiceover that referred to the requester. The Butterworths passage continues:

"... the ambit of the Privacy Act insofar as documents are concerned, should be taken to extend beyond what is, in the strict sense, personal information. Thus, where an individual makes an information privacy request in respect of a document, it would not be valid to distinguish between personal and other information to justify a refusal to make available part of the document’s contents to the individual requesting it. Information contained in documents is not severable under the Act on the basis that some of it is not personal information in a narrow sense, but severing of non-personal information from the document that contains personal information may well serve to remove or obscure the context in which personal information originally appeared. It is presumably for this reason that sections 42 and 43 of the Act deal with information in terms of whole documents rather than personal versus non-personal information within documents when the apparent limits on the disclosure of a document’s contents are those contained in sections 42 and 43 which form, as it were a code in respect of documents that contain personal information."

[35] Having said that, Dr Roth properly accepted that in at least two Case Notes (also referred to in the Butterworths text) the Privacy Commissioner appears to have taken a somewhat more restrictive view.
[36] In our view section 42 does not provide any compelling support for an argument that information which is not in itself personal information about someone can or does become personal information about that person just because it is placed on his or her solicitor’s file. Section 42 deals with the mechanics of how information can be provided rather than the scope of the information that is required to be provided. Furthermore, even in its own terms, section 42 contemplates the possibility that information can be provided by giving excerpts or summaries, and section 43 goes on to expressly authorise the practice of providing part-documents only in appropriate cases. In any event, the issue is somewhat academic in this case because we have not seen the file in question. It may be that there are entire documents that could not possibly be described as containing personal information about the plaintiff save for the fact that they have found their way onto the defendants’ file for the plaintiff.
[37] In order to illustrate the point being argued an analogy was proposed. Suppose the price of a publicly listed stock is $5. There is nothing about that information that could be described as ‘personal’ information about anyone. But now suppose that an individual has 20 shares in the company in question. As we understood the submission, in the process of relating the price of shares to the number of shares owned by the individual, the share price takes on characteristics in the nature of personal information about the owner.
[38] We have given the analogy careful consideration, but in the end we are inclined to think it rather draws attention to the distinction between information that is personal information because it is ‘about’ someone as opposed to other kinds of information. In the example, surely the personal information is the fact that the individual owns 20 shares, and not the fact that publicly listed share price is $5?
[39] With respect, we have reservations about the very wide approach suggested by Dr Roth in this part of the argument. The fact that information may become relevant to someone does not necessarily convert it into personal information ‘about’ that person. In the present case, for example, we think it safe to assume that the defendants’ file for the plaintiff contained information about his former wife. That information may have been relevant to the plaintiff in the sense that it might have either limited or enhanced his chances of obtaining the custody arrangements that he wanted, but for all that we struggle to see that the information about his former wife thereby became personal information about the plaintiff.
[40] Furthermore the very wide approach that was suggested is not consistent with the way in which the Privacy Commissioner has approached recent cases in the Tribunal. The decision in Winter v Jans (Unreported, High Court, Hamilton CIV-2003-419-854, 6 April 2004 per Paterson J, P J Davies & L Whiu) is an example. In that case the relevant file had been given by the agency to the Privacy Commissioner (before it was lost) for the purpose of allowing the Privacy Commissioner to check to what extent it contained information that could be described as personal information about the plaintiffs. It was no part of the Privacy Commissioner’s argument in that case that everything on the file was personal information about the plaintiffs just because it was on the file.
[41] On the other hand, we accept that there is no ‘bright line’ test which separates that which is obviously personal information about an identifiable individual from that which is not. Much will depend in any given case on the context in which the information is found. There may be particular factors in different settings that compel a conclusion that, although the requesting individual is not named in the information, nonetheless there is a sufficient connection between the information and the requester to justify a conclusion that the information is personal information ‘about’ the requester.
[42] The relevance of this discussion to the present case is this: if the Act has the wide scope for which Dr Roth contended then upon receipt of the plaintiff’s request for his file in November 2002 the defendants would have been obliged to make the whole file available in one or more of the ways set out in section 42 of the Act (Dr Roth observed that the defendants would have been required to make the information available in the way preferred by the requesting individual: section 42(2)). If, on the other hand, the scope of the Act is more limited then all that the plaintiff could properly have asked for under the Act was so much of the information on the file as is properly described as personal information about him. In that case, much of the information he wanted might not have been available to him under the Act.
[43] The difficulty for the Tribunal in this case is that the issue does not appear to have been considered in any detail before the hearing. As far as we can tell, no-one has looked at the file at issue and asked the question of the documents on it: is this personal information about the plaintiff to which the Act applies, or is it something else? We were not shown the file and we are not in a position to make our own assessment. As a result, we simply cannot tell what conclusions might have been available if the file had been considered on the more limited basis that we have described. All we have is the plaintiff’s assertion that he was entitled to have a copy of the entire file, and the defendant’s acceptance that it failed to give him access to the file in accordance with the procedures in Parts 4 and 5 of the Act.
[44] For this reason we have recorded the discussion that took place at the hearing about the scope of the definition ‘personal information’, but we prefer not to draw any final conclusions. The whole issue about what is or is not personal information about an identifiable individual is obviously fundamental to the application of the Act. It would be wrong to make a ruling in the absence of full argument and reference to relevant authorities, including (but not limited to) observations on the matter in the Court of Appeal including the Court of Appeal’s dicta in Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80, comparable legislation and authorities in other countries and, to the extent appropriate, to materials dealing with the legislative history of the phrase ‘personal information’ and the other definitions in the Act.
[45] Instead we approach this case on the basis of the defendants’ acceptance that when they failed to provide the plaintiff with access to his file after he made a request for it in November 2002 there was a breach of Principle 6, and their failure constituted an interference with his privacy under section 66(1)(a) of the Act.
[46] We therefore turn to the question of remedy.

Remedy

[47] The plaintiff is entitled to a declaration under section 85(1)(a) of the Act that the defendants’ failure to provide him with access to personal information that they held about him when he requested access to his file was an interference with his privacy. There is an order accordingly.
[48] We make it clear, however, that when the request was received by the defendants they were not absolutely obliged by the Act to provide a copy of the file. The ways in which the defendants might properly have responded to the request are set out in section 42 of the Act.
[49] The only other remedy sought by the plaintiff was an award of damages under sections 85(1)(c) and 88(1)(c) for the humiliation, loss of dignity and injury to his feelings suffered as a result of the defendant’s failure to meet his access request as it should have. The plaintiff asked for a sum of $5,000. Dr Roth supported the plaintiff’s position with a thorough and helpful analysis of recent cases. He submitted that in the end the sum of $5,000 would be about right for this case.
[50] As we have said, the defendants’ position was that there should be no monetary remedy because the plaintiff suffered no harm as a result of what happened. The defendants argued that ultimately the information on their file was never needed by the plaintiff because the way in which the Family Court proceedings unfolded after 28 November 2002 were such that the affidavits thought at that point to be necessary were overtaken by events. It was also submitted that the plaintiff could have obtained so much of the information as had been filed in Court (that being the information of most direct relevance to the Court proceedings) by searching the Court file. In answer the plaintiff produced a copy of the Schedule to the District Court Fees Regulations 2001 which establishes that the per page cost for him to have copies of documents from the Court’s file at that time would have been $5. We think it is unlikely that the Court file would have contained as many as 400 pages but, even so, he said that the total cost of copying the Court file was more than he could afford. Certainly if the Court file had contained as much material as was on the defendants’ file then the cost of copying it at $5 per page would probably have been more than the amount owed by the plaintiff to the defendants.
[51] The figure for copying in the District Court Fees Regulations cannot be disputed. There was, however, a suggestion that in practice the Registrar of the Court would never have charged that much. The defendants also argued (correctly in our view) that rather than copying the file the plaintiff or his new counsel could have asked to inspect the file at the Court offices. Whatever the situation may have been, however, we agree with Dr Roth’s submission that it is an inadequate answer to a Principle 6 case for the defendants to say that the plaintiff could have obtained the same information elsewhere: see, e.g., Winter v Jans (supra) at paragraph 41.
[52] Perhaps in another case the fact that the personal information that is held by a defendant can be obtained elsewhere may have a bearing on the assessment of harm, but we are satisfied that the point does not assist the defendant in this case. The question for us is as to how this particular plaintiff reacted when his request for access to information held by the defendants was turned down flat. In that respect we accept that as a layperson he cannot have been expected to know immediately what other avenues might have been available to him to meet the circumstances. It must be remembered that his request was made against the backdrop of an emotionally charged Family Court case, and his very grave and genuine concerns for the safety of his son.
[53] We have already referred to the plaintiff’s evidence as to how he felt when his request was turned down: see para 17 above. The sharp focus of the plaintiff’s wish to get the information from the defendants was so that he could file affidavits in accordance with a timetable that had been set by the Court. He was not to know then that the case might be resolved without the need for the affidavits. We accept that he felt a strong sense of urgency, so that when he was told that he could not have his file that would have seemed to him intolerable. No doubt his expectation that the file would be copied for him was raised somewhat by the advice he says he had received from the Southland District Law Society and the Community Law Centre (although, as we have indicated, we have some reservations about the accuracy of advice to the effect that the Act entitled him to obtain a copy of everything on the file, notwithstanding that he was still indebted to the defendants).
[54] In the end, we have no difficulty concluding that when his access request was turned down in November 2002 the plaintiff did suffer injury to his feelings in the sense of significant anxiety about how he might proceed with his Family Court case, and a sense of powerlessness and frustration. However in our view that period of deepest anxiety lasted only until he found and consulted with his new lawyer, which was within two weeks of the refusal of his request. We say that because it seems to us clear from the evidence that after that consultation the plaintiff understood that the issues might never come to a contested hearing in Court, and that the next important step in the Family Court process was going to be the preparation and assessment of the section 29A report. The plaintiff told us that his new lawyer had indicated that it would be helpful for her to have his file from the defendants if the matter ever came to a hearing, but there is no evidence to suggest that after that first meeting with his new lawyer the need to prepare the affidavits was considered to be urgent. Instead, matters seem to have been left on the basis that to save costs the plaintiff would continue his efforts to get the file from the defendants with the assistance of either the Law Society or the Privacy Commissioner, but that the new lawyer was not involved in that.
[55] We are willing to accept that even after that first meeting with his new lawyer the defendant continued to have some residual sense of frustration and anxiety, but we think at a very much lower level than he had experienced after the request had been turned down and before he had seen his new lawyer.
[56] In argument much was made by the plaintiff of his assertion that the defendants had deliberately ‘thumbed their nose’ at his request, and that they had refused him access and then maintained that position when they knew or ought to have known that what they was doing was in breach of the Act. The fact that a solicitor’s lien for unpaid fees is not one of the grounds specified in section 29 of the Act as providing good reason to withhold personal information is clear enough from the Act itself. In this part of the argument Dr Roth again supported the plaintiff’s position by drawing our attention to the Privacy Commissioner’s Case Notes 7873 [1997] NZPrivCmr 2 and 16579 [2001] NZ PrivCmr 23 in which the point is discussed. He also produced a copy of an article from the ‘LawTalk’ magazine ‘Privacy Act v Solicitor’s Lien – Whither the Lien?’ (1996) 452 LawTalk 11. All of these materials predated the request for access in this case. Dr Roth also drew our attention to an item in (2003) 601 LawTalk under the title ‘Solicitor’s Lien Over Client Files’. It was his position that the fact that a solicitor’s lien could not be asserted over the Privacy Act was, or should have been, well known by the defendant firm.
[57] We accept that the defendants should have known that they could not simply refer to the case of a lien for work done on a car and refuse access. As a firm of solicitors, it should have appreciated that the position is affected by the Act, and also by the Rules of Professional Conduct for Barristers and Solicitors (the 6^th Edition in effect in 2002).
[58] No doubt the potential application of the Rules of Professional Conduct was the reason why the Southland District Law Society became involved and appears to have had an interest in the matter. However we record that the defendants’ position was that ultimately they volunteered to make the file they held for the plaintiff available to him, and they were never the subject of any adverse determination or order by the Law Society to do so.
[59] Even taking these matters into account, the nature of our jurisdiction in this area is fundamentally compensatory in nature. As the High Court said in Winter v Jans (supra)::

"[53] In assessing damages the Tribunal has a discretion and a correct exercise of that discretion would allow it to take into account ‘aggravating features’. ...The Tribunal has a discretion to assess appropriate damages. In doing so it should take into account all facts surrounding the breach. ...

[54] Behaviour is a factor which can obviously be taken into account in assessing the seriousness of the humiliation, loss of dignity and injury to the feelings suffered by the aggrieved individual, if the Tribunal is satisfied that that behaviour increased the seriousness of the impact upon the complainant."

[60] The decision in Winter v Jans also draws attention to the need for consistency in awards made in this part of our jurisdiction. To the best of our knowledge, the table attached to this decision sets out all cases in which awards have been made under section 88(1)(c) of the Act for humiliation, loss of dignity and injury to feelings where a breach of Principle 6 is involved (we record our gratitude to Dr Roth for his research in this regard). The table suggests that there is still some way to go in the pursuit of consistency, but we hope that collecting the cases in this way will assist for the future. In particular we note that, since the fundamental purpose of these awards is to compensate, this kind of analysis needs to identify the harm for which compensation is being awarded as well as the ‘who did what to whom’ facts of each case.
[61] In this case there was a short period of reasonably severe anxiety which was significant given the context of the Family Court issues, but this is not a case like Winter v Jans where the plaintiff will never know what information might have been on the file.
[62] There was also particular reference to the other High Court decision in this area namely Proceedings Commissioner v Health Waikato (2000) 6 HRNZ 274. In that case the plaintiff was denied access to information before a hearing and was left wondering whether the outcome of that hearing might have been different if he had had the information in time. He was awarded $5,000 for loss of a benefit under section 88(1)(b) but, as Dr Roth submitted, it is possible that there may have been some overlap between that award and the award of $2,000 under section 88(1)(c) compensating for emotional harm and feelings of frustration. In addition the Court commented that its award of $2,000 under section 88(1)(c) would have been higher had the plaintiff not delayed for nearly a year before applying to have the evidence admitted in an appeal.
[63] We take into account that in this case the total period between the date of the request and the date on which the information was ultimately provided was in the order of six months. If one accepts that, had the defendant followed the procedures in the Act, there would in any event have been something of a delay before the information would have been available to the plaintiff, the overall delay we have to consider is in the order of four to five months.
[64] We think it fair to recognise that the defendants could arguably have taken a much more restricted view as to what they were obliged to provide, but that ultimately they provided everything on the file (with the possible exception of their file notes).
[65] In the end, awards of this kind are no more than a jury assessment of the amount of money that is needed to meet the harm demonstrated by particular individuals in different cases. In our view the appropriate award in this case is $2,500.

Formal Orders

[66] We therefore make the following orders.

(a) There is a declaration under section 85(1)(a) of the Act that the defendants’ failure to provide the plaintiff with access to personal information that they held about him when he requested access to his file in November 2002 was an interference with his privacy;
(b) There is an order for damages under sections 85(1)(c) and 88(1)(c) of the Act in the sum of $2,500;
(c) There is an order pursuant to section 107(3)(b) of the Human Rights Act 1993 that there is to be no publication of the name of the plaintiff, his son or his ex-wife (i.e., the mother of the plaintiff’s son), or of any details that might serve to identify any of them in connection with this litigation;
(d) There is an order that the Tribunal’s file in this matter is not to be searched by anyone other than the parties without the leave of the Chairperson of the Tribunal.

Costs

[67] Neither the plaintiff nor the Privacy Commissioner sought costs.

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R D C Hindle – Chairperson

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P J Davies - Member

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G J A Kerr – Member

APPENDIX: AWARDS UNDER SECTION 88(1)(c) FOR CONTRAVENTION OF PRINCIPLE 6

Decision	Facts	Summary of Harm Found	Award Under s.88(1)(c)
Mitchell v Police Commissioner [1994] NZCRT 3; [1995] NZAR 274; [1994] NZCRT 3; [1995] 1 HRNZ 403	The plaintiff requested copies of affidavits for use in a court case. The affidavits were unable to be found and the defendant refused access on that basis. The affidavits, which had been in the possession of one of the Police deponents, were later produced unexpectedly at the court case.	The plaintiff claimed that the unexpected production of the documents embarrassed and humiliated her. The Tribunal found that feelings of frustration and anger could be regarded as injuries to feelings.	$500
Proceedings Commissioner v Commissioner of Police (CRT Decision 18/2000, 10 July 2000)	The plaintiff requested the names and addresses of his alleged assailants. The plaintiff’s requests were wrongly refused by the defendant as being frivolous or vexatious.	Humiliation, loss of dignity and injury to feelings	$200

L v N (1997) 3 HRNZ 721	The plaintiff worked as a volunteer for the defendant for eight years. That work included the supervision of disabled children on recreational activities. The plaintiff later commenced work for a large organisation in another district. His work involved the care of children. The plaintiff was suspended from that position following the passing of information from the defendant to the new employer that the plaintiff was the subject of a complaint to the Police by the defendant about an indecent assault on a child in his care. Prior to the receipt of the reasons for his suspension, the plaintiff was unaware of the complaint, the internal enquiry by the defendant or the referral of the complaint to the Police. The plaintiff made a request for information held by the defendant. The defendant’s response did not refer to the complaint, the internal enquiry or the referral to the Police. The defendants were found to have deliberately concealed information from a plaintiff, even though it was obvious to the plaintiff at the time that this information was being made available to others. The defendant forced the plaintiff to overcome a number of obstacles in his quest for his personal information, which caused an increasing number of people to learn of the damaging but unanswered allegation against him concerning the indecent assault on a disabled child in his care.	The process which the defendant forced the plaintiff to undertake in order to obtain the information was a significant source of humiliation. The Tribunal found that the greater the effort expended on the campaign to disprove the allegation, the more people that came to know of the allegation. The Tribunal also found that stress and humiliation was ‘self evident’.	$20,000
DAS v Dept of Child, Youth and Family Services (CRT Decision 24/00, 13 September 2000)	The defendant failed to provide the plaintiff with timely access to personal information regarding an allegation of the sexual abuse of a disabled child in the plaintiff’s care.	The plaintiff was found to be enormously aggrieved by the way he was dealt with by the defendant and to have suffered humiliation, loss of dignity and injury to feelings.	$7,000
Plumtree v Attorney-General (HRRT Decision 10/02, 2 October 2002)	The defendant failed to provide the plaintiff with access to personal information that was held about him (namely vaccination information, a letter written whilst the plaintiff was in Vietnam requesting reduction of his engagement and medical information) and made a number of errors in processing his requests for that personal information.	The plaintiff was found to have suffered humiliation, stress and injury to feelings caused by the way in which his requests were dealt with by the defendant. In making its award, the Tribunal acknowledged it was "difficult to disentangle the adverse consequences suffered as a result of the matters found to have been in interference with his privacy from Mr Plumtree’s deep-seated unhappiness about the way in which he sees the Army as having treated him generally."	$3,000
Jans v Winter (HRRT Decision 21/03, 27 June 2003); Winter v Jans (High Court, Hamilton, CIB/2003/419/00854, 6 April 2004, Patterson J, PJ Davies and L Whiu)	The managing director of a real estate agency refused to provide the plaintiffs with access to personal information about them, believed to be held by the agency, in respect of a mortgagee sale of a property owned by the plaintiffs. The defendant’s behaviour was held to be uncooperative and the relevant file went permanently missing during the time the parties were communicating. The information was requested because the plaintiffs had concerns about the way in which the mortgagee sale was carried out and believed that the property was sold at undervalue. The plaintiffs had possible court proceedings for recovery of the losses in mind.	The uncertainty of not knowing (and not ever being able to find out) whatever it was that access to the personal information on the defendant’s file might have revealed. The Tribunal found that the loss of benefit of certainty gave rise to significant humiliation, loss of dignity and injury to feelings. The High Court subsequently held that there was no humiliation or loss of dignity and that the injury to feelings was not "significant." However a finding of significance was unnecessary under s.88(1)(c).	$5,000 Raised to $7,000 by High Court ($3,500 for each of Mr and Mrs Jans).
S v Department of Child Youth and Family Services (CRT Decision 12/2000, 30 June 2000)	The defendant failed to make information available to the plaintiff in a timely fashion. The plaintiff had requested information in connection with legal action he was taking against the defendant for abuse while he was in its care as a child. The Tribunal accepted that there were "a series of system errors, changes and mistakes which contributed to the problem" rather than any conspiracy on the part of the defendant to withhold the information.	The plaintiff alleged that the delay in providing the information exacerbated his existing anger and depression, which had been caused by abuse, and for which he was receiving treatment. The Tribunal accepted that the plaintiff had suffered some humiliation.	$2,500
Proceedings Commissioner v Health Waikato (CRT Decision 3/2000, 14 March 2000); Proceedings Commissioner v Health Waikato Limited (2000) 6 HRNZ 274 (High Court)	The defendant failed to disclose two letters to the plaintiff notwithstanding that they may have been relevant to litigation between the defendant and the plaintiff in the Employment Tribunal. The plaintiff discovered the two letters after the conclusion of the Employment Tribunal hearing.	The Tribunal accepted that the discovery of the existence of the two letters after the Employment Tribunal hearing may well have caused the plaintiff additional stress, over and above that caused by the protracted employment litigation. However, the Tribunal found that any such additional stress was the price of the plaintiff’s litigiousness. The High Court found that the Tribunal had failed to properly address the issue of damages. The Court accepted that the plaintiff "would have felt ambushed and stressed" when he became aware of the letters that had been withheld from him, and he would have suffered further stress and disadvantage in having to decide whether or not to apply to have the newly acquired evidence introduced on appeal, where the respondent was contesting its introduction (para. 49).	$2,000
Andrew Ronald MacMillan v Department of Corrections (HRRT Decision 41/04, 18 August 2004	The plaintiff was a prison inmate who was refused access to a letter written to the prison warden containing allegations about his association with a teenage girl while on temporary release. Following a complaint to the Privacy Commissioner the plaintiff was provided with an edited version and was later provided with a less heavily edited copy.	The Tribunal found that the plaintiff’s anxiety in having been told of a letter containing potentially damaging allegations about him, but not then being given access to the letter, was likely to engender some injury to feelings at least in the form of anxiety or distress at the thought that those who are in a position to influence or decide his future, or his conditions, were aware of information that he was not able to respond to as he would otherwise have tried to do.	$1,200

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[4]	There are some preliminary matters to be dealt with.
[5]	For a period before November 2002 the defendants acted for the plaintiff in connection with proceedings in the Family Court. Those proceedings concerned the care and protection of the plaintiff’s young son while he (the son) was in his mother’s care. A good deal of the evidence given by the plaintiff related to his concerns for his son. As a result the case cannot be dealt with without giving some information about the son.
[6]	At the commencement of the hearing Dr Roth submitted that there should be an order to protect the anonymity of the plaintiff’s son. The defendants agreed, and so do we. Indeed this is one of those cases where we regard it as appropriate to protect the anonymity not only of the son but also of his parents who, despite their former differences, both gave evidence at the hearing. We do not extend the name suppression orders to cover the parents for their own sake, but because to do otherwise could lead to identification of the son.
[7]	Having regard to the authorities discussed in the recent case of B N K v Trainor (HRRT Decision 18/04; 17 May 2004) we are satisfied that the interests of the son in this case are such as to outweigh the public interest in openness in the conduct of proceedings in the Tribunal. Pursuant to section 107(3)(b) of the Human Rights Act 1993 we therefore direct that there is to be no publication of the name of the plaintiff, his son or his ex-wife (i.e., the mother of the plaintiff’s son), or of any details that might serve to identify any of them in connection with this litigation. This is a permanent order. As an added protection we also direct that the Tribunal’s file in this matter is not to be searched by anyone other than the parties without the leave of the Chairperson of the Tribunal.
[8]	The plaintiff will be identified by the letters ‘CBN’ in the intituling to this decision. Those are not his initials.
[9]	Aside from the question of name suppression, we record that the matters raised by the claim have been the subject of investigation by the Privacy Commissioner. It was accepted that in terms of sections 82 and 83 of the Act we have jurisdiction to deal with the case.

[10]	It is convenient to set out some more background.
[11]	The plaintiff instructed the defendant firm to act for him in October 2001. By November 2002 the plaintiff was indebted to the defendants for legal services in a sum of about $2,000. Attempts to put progress payments in place had been made but were unsuccessful. The plaintiff accepted that as at November 2002 he was and had been behind in his payments to the firm for some time.
[12]	At the time the care and protection issues in the Family Court were ongoing. The plaintiff began considering the possibility of relocating from Invercargill to Christchurch in order to try and ameliorate his concerns for his son’s safety. The focus of these developments was a judicial issues conference that was convened in the Family Court on 26 November 2002. We were shown a report written by counsel appointed to represent the son in the family proceedings, and in which it is recorded that a report under section 29A of the Guardianship Act 1968 was to be prepared. The plaintiff was to have until 20 December 2000 to file any affidavits in relation to the relocation issue. The Court’s timetable also provided that his former wife was to have until 31 January 2003 to respond.
[13]	On 28 November 2002 the plaintiff telephoned the defendants to set up an appointment to see the solicitor who was handling his case about preparing the affidavits. She declined to meet with him, saying that she would not do so unless his account was paid in full. Instalment payments would no longer be acceptable.
[14]	At that point the plaintiff asked if he could uplift his file. He was told that he could not do so until all outstanding accounts had been cleared.
[15]	We pause in the narration of the facts to make some observations about this exchange.
[a]	The discussion on 28 November 2002 appears to have been accepted on all sides as an effective request by the plaintiff under the Act for access to personal information. It is clear from Principle 6 itself that no particular formality is required for such a request and, in particular, that there is no need for the request to be in writing. The request in this case was never reduced to writing;
[b]	The request was for the plaintiff to have a copy of his file. At the time, the file comprised some 400 pages so that there would have been a cost and some effort involved in that. There is nothing in the evidence to suggest that either the plaintiff or the defendants at that time considered other options for providing access to the information, for example, by providing the plaintiff with an opportunity to inspect the file or by giving an excerpt or summary of particular information from the file: see section 42(1) of the Act;
[c]	The evidence establishes that the plaintiff asked for a copy of his file. Principle 6(1) however, is expressed as follows:

[16]	Much of the evidence filed by the plaintiff in advance of the hearing and as given in his evidence-in-chief described harm that was said to have been suffered by his son as a result of the defendant’s refusal to copy the file for him. But whatever the rights and wrongs of that may be, this case is about the privacy of the plaintiff, not his son or anyone else.
[17]	No doubt appreciating the shortcomings in the plaintiff’s evidence as to what the consequences have been for him, at the hearing Dr Roth asked him to describe how he had felt when told he could not have a copy of the file. The plaintiff said that at the time he was very anxious about his son and what might occur to his son if he were not able to take steps to improve his (the son’s) position. He saw the defendants’ conduct as high-handed and obstructive. He felt that the defendants were behaving in a deliberate manner, and he was left with a sense of powerlessness, frustration and anxiety. At other points of his evidence the plaintiff described his reaction as having been ‘absolutely gutted’. He felt that his case in the Family Court had ‘fallen to bits’ and that he had ‘hit a brick wall’ and had no options left. He gave evidence to the effect that his performance in his job was adversely affected.
[18]	We return to the chronology of events.
[19]	After the defendant refused to copy the file for the plaintiff, the plaintiff took advice from someone at the Southland District Law Society and also from the local Community Law Centre. Apparently he was told that the defendants could not legally prevent him from obtaining a copy of the file. He therefore returned to the defendants and repeated his request, by this time offering to pay for all copying costs. Again he was told that he could not have the file. He said that the lawyer who was involved said to him that she did not care that he may have had different advice, and illustrated the firm’s position by saying, ‘If you get your car fixed you don’t get it back until the account is paid in full.’
[20]	Although the plaintiff said he had trouble finding a new lawyer, he accepted that within two weeks of 28 November 2002 he had instructed someone else. Clearly the new lawyer did not regard the business of obtaining the file regarding the plaintiff from the defendants as a first priority. She took the view that the next significant step in the litigation would be the preparation of the section 29A report. She told the plaintiff that the information that was on the defendants’ file for him would, or might, become useful if affidavits were required should the matter go to a hearing at some future stage. Clearly she felt it was too soon to say whether or not that would ever eventuate. The process of initiating and supervising the preparation of the section 29A report was something for which counsel for the child was responsible, not the plaintiff or his lawyer. In the meantime, the plaintiff was to pursue the question of obtaining his file from the defendant on his own.
[21]	The plaintiff was asked during the hearing why he did not simply obtain the information from the Court file. He told us that the charge for copying documents on the Court’s file at the time was $5 per page, and that with 400 or so pages he simply could not afford to do that.
[22]	On 28 February 2003 the plaintiff wrote to the Privacy Commissioner to enlist his support, but as far as we can tell the involvement of the Southland District Law Society ultimately overtook the efforts by the Privacy Commissioner because in early June 2003 (and as a result of input from the Law Society) the file was made available to the plaintiff.
[23]	There had been some correspondence in the intervening period (i.e., between 28 November 2002 and early June 2003) about the proposed section 29A report. The plaintiff was represented in that correspondence by his new counsel. He has not complained that he was in any way compromised in that exchange because he did not have his file from the defendant.
[24]	In due course a memorandum was filed in the Family Court on 27 August 2003 regarding the section 29A procedure, and a Court-approved psychologist was asked to prepare a report. The report was received in February 2004. The plaintiff seems as a result of that report to have accepted that his initiative for relocation would not succeed. He also accepted the need to have an end of the fighting between he and his former wife in the interests of his son. We are pleased to record that by late February 2004 the plaintiff felt able to withdraw the applications for relocation and change of care arrangements, and the Family Court proceedings were brought to an end.
[25]	As a result the affidavits that had been required by the Court at the 26 November 2002 conference were never prepared or filed.
[26]	The investigation by the Privacy Commissioner regarding the consequences of these events continued. We were not shown all of the correspondence arising out of that, but we do need to mention an exchange in July and August 2003 that may have some bearing on the question of remedy. In particular, on 30 July 2003 the defendants wrote to the Privacy Commissioner to say that they would apologise to the plaintiff for what had happened, but would not pay any compensation. That information was passed on to the plaintiff, although we do not know in exactly what terms.
[27]	However on 4 August 2003 the plaintiff wrote to the Privacy Commissioner saying he was happy to learn that the defendants would apologise, but expressing concern about their position aside from that. Curiously, the next letter in the chain that we were shown is one dated 6 August 2003 from the Office of the Privacy Commissioner to the defendants which says, amongst other things, that the plaintiff had accepted the defendants’ apology.
[28]	This gave rise to a misunderstanding that persisted to the hearing. The defendants thought that an apology had been accepted. The plaintiff said no apology had ever been received. On the information available to us we are bound to say that the cause of this miscommunication appears to have been the way in which the Privacy Commissioner’s Investigating Officer chose to report the position of one party to the other. In this respect the case is a lesson in the need for clear and accurate reporting of the position of one side to another in the process of a negotiation such as this was. This problem would not have occurred at all if the Privacy Commissioner had simply shown copies of the letters being received from one side to the other. We gather that is not a practice that is always or even regularly adopted.

[29]	As we said, by the time of the hearing in the Tribunal the defendants accepted that they should not have dealt with the plaintiff’s request of November 2002 as they did. They acknowledged that a breach of Principle 6 had occurred, and that the Tribunal was empowered to award a remedy. The thrust of the defendants’ case was that, even so, no monetary remedy should be granted because no harm had really been done. In particular, the defendants argued that ultimately the need to file the affidavits which had prompted the access request had been overtaken by subsequent events in the Family Court litigation.
[30]	Although the defendants did not take the point (and when raised, did not press it) we have some reservations about the extent of their default in this case. It will be remembered that what the plaintiff asked for was a copy of his file. We were not shown the file, and cannot say how the documents on it might have been classified. But the plaintiff accepted that it contained a number of different kinds of information. There was, for example, information about his former wife (the mother of his son) and in particular information about her living arrangements and the circumstances into which his son was placed whenever he was in her custody. There would also have been information about the mother’s new partner and, perhaps, information dealing with the plaintiff’s concerns about how his son might be treated by that man. Last but not least, there would also have been information about the plaintiff himself.
[31]	Insofar as the file comprised information about the plaintiff, much if not all of it would of course have come from him in the first instance. He knew things like where he was living, and about previous Court matters that he had been involved in and which might count against him when it came to considering issues like relocation. The significant point however, is that the file was made up of different kinds of information, not all of which would in or of itself have been information ‘about’ the plaintiff.
[32]	In this context some definitions are significant: Specifically, section 2 of the Act defines ‘personal information’, ‘individual’ and ‘individual concerned’ as follows:

[35]	Having said that, Dr Roth properly accepted that in at least two Case Notes (also referred to in the Butterworths text) the Privacy Commissioner appears to have taken a somewhat more restrictive view.
[36]	In our view section 42 does not provide any compelling support for an argument that information which is not in itself personal information about someone can or does become personal information about that person just because it is placed on his or her solicitor’s file. Section 42 deals with the mechanics of how information can be provided rather than the scope of the information that is required to be provided. Furthermore, even in its own terms, section 42 contemplates the possibility that information can be provided by giving excerpts or summaries, and section 43 goes on to expressly authorise the practice of providing part-documents only in appropriate cases. In any event, the issue is somewhat academic in this case because we have not seen the file in question. It may be that there are entire documents that could not possibly be described as containing personal information about the plaintiff save for the fact that they have found their way onto the defendants’ file for the plaintiff.
[37]	In order to illustrate the point being argued an analogy was proposed. Suppose the price of a publicly listed stock is $5. There is nothing about that information that could be described as ‘personal’ information about anyone. But now suppose that an individual has 20 shares in the company in question. As we understood the submission, in the process of relating the price of shares to the number of shares owned by the individual, the share price takes on characteristics in the nature of personal information about the owner.
[38]	We have given the analogy careful consideration, but in the end we are inclined to think it rather draws attention to the distinction between information that is personal information because it is ‘about’ someone as opposed to other kinds of information. In the example, surely the personal information is the fact that the individual owns 20 shares, and not the fact that publicly listed share price is $5?
[39]	With respect, we have reservations about the very wide approach suggested by Dr Roth in this part of the argument. The fact that information may become relevant to someone does not necessarily convert it into personal information ‘about’ that person. In the present case, for example, we think it safe to assume that the defendants’ file for the plaintiff contained information about his former wife. That information may have been relevant to the plaintiff in the sense that it might have either limited or enhanced his chances of obtaining the custody arrangements that he wanted, but for all that we struggle to see that the information about his former wife thereby became personal information about the plaintiff.
[40]	Furthermore the very wide approach that was suggested is not consistent with the way in which the Privacy Commissioner has approached recent cases in the Tribunal. The decision in Winter v Jans (Unreported, High Court, Hamilton CIV-2003-419-854, 6 April 2004 per Paterson J, P J Davies & L Whiu) is an example. In that case the relevant file had been given by the agency to the Privacy Commissioner (before it was lost) for the purpose of allowing the Privacy Commissioner to check to what extent it contained information that could be described as personal information about the plaintiffs. It was no part of the Privacy Commissioner’s argument in that case that everything on the file was personal information about the plaintiffs just because it was on the file.
[41]	On the other hand, we accept that there is no ‘bright line’ test which separates that which is obviously personal information about an identifiable individual from that which is not. Much will depend in any given case on the context in which the information is found. There may be particular factors in different settings that compel a conclusion that, although the requesting individual is not named in the information, nonetheless there is a sufficient connection between the information and the requester to justify a conclusion that the information is personal information ‘about’ the requester.
[42]	The relevance of this discussion to the present case is this: if the Act has the wide scope for which Dr Roth contended then upon receipt of the plaintiff’s request for his file in November 2002 the defendants would have been obliged to make the whole file available in one or more of the ways set out in section 42 of the Act (Dr Roth observed that the defendants would have been required to make the information available in the way preferred by the requesting individual: section 42(2)). If, on the other hand, the scope of the Act is more limited then all that the plaintiff could properly have asked for under the Act was so much of the information on the file as is properly described as personal information about him. In that case, much of the information he wanted might not have been available to him under the Act.
[43]	The difficulty for the Tribunal in this case is that the issue does not appear to have been considered in any detail before the hearing. As far as we can tell, no-one has looked at the file at issue and asked the question of the documents on it: is this personal information about the plaintiff to which the Act applies, or is it something else? We were not shown the file and we are not in a position to make our own assessment. As a result, we simply cannot tell what conclusions might have been available if the file had been considered on the more limited basis that we have described. All we have is the plaintiff’s assertion that he was entitled to have a copy of the entire file, and the defendant’s acceptance that it failed to give him access to the file in accordance with the procedures in Parts 4 and 5 of the Act.
[44]	For this reason we have recorded the discussion that took place at the hearing about the scope of the definition ‘personal information’, but we prefer not to draw any final conclusions. The whole issue about what is or is not personal information about an identifiable individual is obviously fundamental to the application of the Act. It would be wrong to make a ruling in the absence of full argument and reference to relevant authorities, including (but not limited to) observations on the matter in the Court of Appeal including the Court of Appeal’s dicta in Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80, comparable legislation and authorities in other countries and, to the extent appropriate, to materials dealing with the legislative history of the phrase ‘personal information’ and the other definitions in the Act.
[45]	Instead we approach this case on the basis of the defendants’ acceptance that when they failed to provide the plaintiff with access to his file after he made a request for it in November 2002 there was a breach of Principle 6, and their failure constituted an interference with his privacy under section 66(1)(a) of the Act.
[46]	We therefore turn to the question of remedy.

[47]	The plaintiff is entitled to a declaration under section 85(1)(a) of the Act that the defendants’ failure to provide him with access to personal information that they held about him when he requested access to his file was an interference with his privacy. There is an order accordingly.
[48]	We make it clear, however, that when the request was received by the defendants they were not absolutely obliged by the Act to provide a copy of the file. The ways in which the defendants might properly have responded to the request are set out in section 42 of the Act.
[49]	The only other remedy sought by the plaintiff was an award of damages under sections 85(1)(c) and 88(1)(c) for the humiliation, loss of dignity and injury to his feelings suffered as a result of the defendant’s failure to meet his access request as it should have. The plaintiff asked for a sum of $5,000. Dr Roth supported the plaintiff’s position with a thorough and helpful analysis of recent cases. He submitted that in the end the sum of $5,000 would be about right for this case.
[50]	As we have said, the defendants’ position was that there should be no monetary remedy because the plaintiff suffered no harm as a result of what happened. The defendants argued that ultimately the information on their file was never needed by the plaintiff because the way in which the Family Court proceedings unfolded after 28 November 2002 were such that the affidavits thought at that point to be necessary were overtaken by events. It was also submitted that the plaintiff could have obtained so much of the information as had been filed in Court (that being the information of most direct relevance to the Court proceedings) by searching the Court file. In answer the plaintiff produced a copy of the Schedule to the District Court Fees Regulations 2001 which establishes that the per page cost for him to have copies of documents from the Court’s file at that time would have been $5. We think it is unlikely that the Court file would have contained as many as 400 pages but, even so, he said that the total cost of copying the Court file was more than he could afford. Certainly if the Court file had contained as much material as was on the defendants’ file then the cost of copying it at $5 per page would probably have been more than the amount owed by the plaintiff to the defendants.
[51]	The figure for copying in the District Court Fees Regulations cannot be disputed. There was, however, a suggestion that in practice the Registrar of the Court would never have charged that much. The defendants also argued (correctly in our view) that rather than copying the file the plaintiff or his new counsel could have asked to inspect the file at the Court offices. Whatever the situation may have been, however, we agree with Dr Roth’s submission that it is an inadequate answer to a Principle 6 case for the defendants to say that the plaintiff could have obtained the same information elsewhere: see, e.g., Winter v Jans (supra) at paragraph 41.
[52]	Perhaps in another case the fact that the personal information that is held by a defendant can be obtained elsewhere may have a bearing on the assessment of harm, but we are satisfied that the point does not assist the defendant in this case. The question for us is as to how this particular plaintiff reacted when his request for access to information held by the defendants was turned down flat. In that respect we accept that as a layperson he cannot have been expected to know immediately what other avenues might have been available to him to meet the circumstances. It must be remembered that his request was made against the backdrop of an emotionally charged Family Court case, and his very grave and genuine concerns for the safety of his son.
[53]	We have already referred to the plaintiff’s evidence as to how he felt when his request was turned down: see para 17 above. The sharp focus of the plaintiff’s wish to get the information from the defendants was so that he could file affidavits in accordance with a timetable that had been set by the Court. He was not to know then that the case might be resolved without the need for the affidavits. We accept that he felt a strong sense of urgency, so that when he was told that he could not have his file that would have seemed to him intolerable. No doubt his expectation that the file would be copied for him was raised somewhat by the advice he says he had received from the Southland District Law Society and the Community Law Centre (although, as we have indicated, we have some reservations about the accuracy of advice to the effect that the Act entitled him to obtain a copy of everything on the file, notwithstanding that he was still indebted to the defendants).
[54]	In the end, we have no difficulty concluding that when his access request was turned down in November 2002 the plaintiff did suffer injury to his feelings in the sense of significant anxiety about how he might proceed with his Family Court case, and a sense of powerlessness and frustration. However in our view that period of deepest anxiety lasted only until he found and consulted with his new lawyer, which was within two weeks of the refusal of his request. We say that because it seems to us clear from the evidence that after that consultation the plaintiff understood that the issues might never come to a contested hearing in Court, and that the next important step in the Family Court process was going to be the preparation and assessment of the section 29A report. The plaintiff told us that his new lawyer had indicated that it would be helpful for her to have his file from the defendants if the matter ever came to a hearing, but there is no evidence to suggest that after that first meeting with his new lawyer the need to prepare the affidavits was considered to be urgent. Instead, matters seem to have been left on the basis that to save costs the plaintiff would continue his efforts to get the file from the defendants with the assistance of either the Law Society or the Privacy Commissioner, but that the new lawyer was not involved in that.
[55]	We are willing to accept that even after that first meeting with his new lawyer the defendant continued to have some residual sense of frustration and anxiety, but we think at a very much lower level than he had experienced after the request had been turned down and before he had seen his new lawyer.
[56]	In argument much was made by the plaintiff of his assertion that the defendants had deliberately ‘thumbed their nose’ at his request, and that they had refused him access and then maintained that position when they knew or ought to have known that what they was doing was in breach of the Act. The fact that a solicitor’s lien for unpaid fees is not one of the grounds specified in section 29 of the Act as providing good reason to withhold personal information is clear enough from the Act itself. In this part of the argument Dr Roth again supported the plaintiff’s position by drawing our attention to the Privacy Commissioner’s Case Notes 7873 [1997] NZPrivCmr 2 and 16579 [2001] NZ PrivCmr 23 in which the point is discussed. He also produced a copy of an article from the ‘LawTalk’ magazine ‘Privacy Act v Solicitor’s Lien – Whither the Lien?’ (1996) 452 LawTalk 11. All of these materials predated the request for access in this case. Dr Roth also drew our attention to an item in (2003) 601 LawTalk under the title ‘Solicitor’s Lien Over Client Files’. It was his position that the fact that a solicitor’s lien could not be asserted over the Privacy Act was, or should have been, well known by the defendant firm.
[57]	We accept that the defendants should have known that they could not simply refer to the case of a lien for work done on a car and refuse access. As a firm of solicitors, it should have appreciated that the position is affected by the Act, and also by the Rules of Professional Conduct for Barristers and Solicitors (the 6^th Edition in effect in 2002).
[58]	No doubt the potential application of the Rules of Professional Conduct was the reason why the Southland District Law Society became involved and appears to have had an interest in the matter. However we record that the defendants’ position was that ultimately they volunteered to make the file they held for the plaintiff available to him, and they were never the subject of any adverse determination or order by the Law Society to do so.
[59]	Even taking these matters into account, the nature of our jurisdiction in this area is fundamentally compensatory in nature. As the High Court said in Winter v Jans (supra)::

[60]	The decision in Winter v Jans also draws attention to the need for consistency in awards made in this part of our jurisdiction. To the best of our knowledge, the table attached to this decision sets out all cases in which awards have been made under section 88(1)(c) of the Act for humiliation, loss of dignity and injury to feelings where a breach of Principle 6 is involved (we record our gratitude to Dr Roth for his research in this regard). The table suggests that there is still some way to go in the pursuit of consistency, but we hope that collecting the cases in this way will assist for the future. In particular we note that, since the fundamental purpose of these awards is to compensate, this kind of analysis needs to identify the harm for which compensation is being awarded as well as the ‘who did what to whom’ facts of each case.
[61]	In this case there was a short period of reasonably severe anxiety which was significant given the context of the Family Court issues, but this is not a case like Winter v Jans where the plaintiff will never know what information might have been on the file.
[62]	There was also particular reference to the other High Court decision in this area namely Proceedings Commissioner v Health Waikato (2000) 6 HRNZ 274. In that case the plaintiff was denied access to information before a hearing and was left wondering whether the outcome of that hearing might have been different if he had had the information in time. He was awarded $5,000 for loss of a benefit under section 88(1)(b) but, as Dr Roth submitted, it is possible that there may have been some overlap between that award and the award of $2,000 under section 88(1)(c) compensating for emotional harm and feelings of frustration. In addition the Court commented that its award of $2,000 under section 88(1)(c) would have been higher had the plaintiff not delayed for nearly a year before applying to have the evidence admitted in an appeal.
[63]	We take into account that in this case the total period between the date of the request and the date on which the information was ultimately provided was in the order of six months. If one accepts that, had the defendant followed the procedures in the Act, there would in any event have been something of a delay before the information would have been available to the plaintiff, the overall delay we have to consider is in the order of four to five months.
[64]	We think it fair to recognise that the defendants could arguably have taken a much more restricted view as to what they were obliged to provide, but that ultimately they provided everything on the file (with the possible exception of their file notes).
[65]	In the end, awards of this kind are no more than a jury assessment of the amount of money that is needed to meet the harm demonstrated by particular individuals in different cases. In our view the appropriate award in this case is $2,500.

(a)	There is a declaration under section 85(1)(a) of the Act that the defendants’ failure to provide the plaintiff with access to personal information that they held about him when he requested access to his file in November 2002 was an interference with his privacy;
(b)	There is an order for damages under sections 85(1)(c) and 88(1)(c) of the Act in the sum of $2,500;
(c)	There is an order pursuant to section 107(3)(b) of the Human Rights Act 1993 that there is to be no publication of the name of the plaintiff, his son or his ex-wife (i.e., the mother of the plaintiff’s son), or of any details that might serve to identify any of them in connection with this litigation;
(d)	There is an order that the Tribunal’s file in this matter is not to be searched by anyone other than the parties without the leave of the Chairperson of the Tribunal.