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GOLDEN v MINISTRY OF ECONOMIC DEVELOPMENT [2005] NZHRRT 13 (26 May 2005)

Last Updated: 1 June 2005

Decision No. 13/2005

Reference No. HRRT 038/04

BETWEEN ALLAN GEORGE GOLDEN

Plaintiff

AND MINISTRY OF ECONOMIC DEVELOPMENT

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

R D C Hindle - Chairperson
I Vodanovic - Member

P J Davies - Member

HEARING by way of an exchange of written submissions from:

Mr A G Golden, plaintiff
Ms U R Jagose/Ms J K Cumming for defendant
Mr R Stevens for Privacy Commissioner

DATE OF DECISION 26 May 2005

DECISION IN RESPECT OF PRELIMINARY ISSUES

Introduction

[1]	On 15 May 2002 the plaintiff sent an email to the defendant (‘the Ministry’) entitled "Accounting Standards Review Board". His email read as follows:

"Could you please advise me who are the current members of this board and who the chairperson is

Does the board have a web site
Regards
Allan Golden"
[The plaintiff’s street address was also set out]

[2]	The next day the Ministry replied:

"Allan

This does not come under the auspices of the Ministry of Economic Development.

I’ve checked with the Institute of Chartered Accountants of NZ (ICANZ www.icanz. co.nz) which advises that it is responsible for this area. The email address registry@icanz.co.nz was provided; it defaults to the "[name deleted]" email address as in the cc field above.

It seems from ICANZ’s information on their web site that the Board to which you refer may be known as the Financial Reporting Standards Board but ICANZ will need to confirm this for you.

Regards . . ."

[The email was sent by someone who signed as a researcher at the Ministry]

[3]

It will be apparent from the text of the email sent by the Ministry that, in addition to responding to the plaintiff, the email was also copied to a named individual at the Institute of Chartered Accountants of New Zealand (‘the Institute’). Thus the Institute received both the plaintiff’s email of 15 May 2002 and the Ministry’s reply of 16 May 2002 to the plaintiff.

[4]

The reply sent to the plaintiff referred to the ‘Financial Reporting Standards Board’. Section 22 of the Financial Reporting Act 1993 establishes the Accounting Standards Review Board which, as far was we are aware, is administered through the Institute. Whatever the correct title is or may have been, it is sufficient for our purposes to refer to it as ‘the Board’.

[5]

The plaintiff describes himself as having been a long-standing critic of the Institute. In his claim to the Tribunal, he explained that he wanted confirmation of the membership list for the Board so that he could complain to the Minister of Commerce about their behaviour. He said that it had been humiliating to him that, as a consequence of the forwarding of the email to the Institute, the Institute could "...observe what I am getting up to by infiltrating the records of [the Ministry] in this manner".

[6]	In these circumstances the plaintiff says that there has been an interference with his privacy by the Ministry, and that he should be awarded various remedies under s.85 of the Privacy Act 1993 (‘the Act’) as a result.

The Conduct of the Claim

[7]	The plaintiff’s complaint was referred to the Privacy Commissioner who investigated it as possibly disclosing a breach of Principle 11. Insofar as relevant for present purposes Principle 11 provides:

"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 directly related to the purposes in connection with which the information was obtained ...."

[8]

After investigation the Privacy Commissioner concluded that no interference with the plaintiff’s privacy had been established. Disappointed with that outcome, the plaintiff filed the present proceedings in the Tribunal in September 2004. It was accepted by both the Ministry and the Privacy Commissioner that the Tribunal has jurisdiction to deal the matter.

[9]

The first telephone conference in the matter took place with the Chairperson of the Tribunal on 3 November 2004. It was agreed that there were two preliminary questions which should be dealt with before any further steps in the proceeding were undertaken. It was also agreed that the questions should be dealt with by an exchange of written submissions and without any oral argument.

[10]	The two preliminary questions that were identified were:

(a)	When the Ministry sent the emails to the Institute, did it disclose personal information about the plaintiff to the Institute?

(b)	If so, was the disclosure of a kind protected by the exception in Principle 11(a)?

[11]	The Chairperson set a timetable for the filing of submissions, and written argument has now been received from all parties on these questions.

[12]

The purpose of this decision is to deal with these two preliminary matters. Before turning to them, however, we note that in the detailed submissions which the plaintiff filed there seems to be a shift in emphasis away from Principle 11 and on to Principle 3. It is clear, however, that the matter has not been investigated by the Privacy Commissioner as under Principle 3. The Tribunal’s decisions in Steele v Department of Work and Income (HRRT Decision 12/02; 23 July 2002) and Waugh v New Zealand Association of Counsellors Incorporated (HRRT Decision 9/03; 17 March 2003) make it clear that we do not have jurisdiction to deal with the Principle 3 issues, at least at this stage. As a result we do not propose to address the argument raised by the plaintiff in that regard.

Was there a Disclosure of Personal Information?

[13]	The argument under this heading was concerned with the application of the definition of "personal information" in s.2 of the Act:

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 & Marriages Registration Act 1995 or any former Act.

[14]

The Ministry derived support for its argument that the words "personal information" should be narrowly interpreted from the decision of the Court of Appeal in Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 in particular at paragraph 23. The issue of what constitutes "personal information" in this context has been discussed by the Tribunal in Boyle v Manurewa RSA Incorporated (HRRT Decision 16/03; 4 June 2003) and (more recently) in CBN v McKenzie Associates (HRRT Decision 48/04; 30 September 2004) and Apostalakis v Sievwrights (HRRT Decision 1/05; 14 February 2005 - although it should be noted that the last of these decisions is presently under appeal). We do not repeat the discussion here. We do note, however, that since the issues in this case were dealt with as preliminary questions it seems to us appropriate to approach any questions of disputed fact as being capable of determination in the plaintiff’s favour in due course.

[15]	The Ministry accepted that the email of 15 May 2002 contains the following personal information about the plaintiff:

(a)

His name,

(b)	His email address, and

(c)	His street address.

[16]

There can be no doubt that all of that information was disclosed by the Ministry to the Institute when it forwarded the plaintiff’s email to the Institute. But, as the Ministry submitted, these are not the pieces of personal information the disclosure of which seem to have most concerned the plaintiff. In the way in which the plaintiff put his argument, it was asserted that the Ministry had disclosed the following pieces of personal infiormation about him to the Institue (the plaintiff described his list as "non exhaustive"):

[a]	That he " ... probably had an interest in accounting issues or certain ones";

[b]	That he had some interest in who the members of the Board were, or whether particular people were members;

[c]	That there was possibly an opportunity to sell the Board a website, and that he might be seeking to " ... steal a march in commercial terms in offering it with such";

[d]	That he " ... probably had a tendancy to be somewhat careless in communications ..." because the first sentence of the email was not grammatically correct, and the email was not formally addressed;

[e]	That there had possibly been a news event that had a bearing on the Board or one or some of its members, and that he was seeking to get some sort of news scoop after checking the facts;

[f]	That " ... perhaps I am an eccentric who likes to associate in some ways with prestigious professional bodies."

[17]	The plaintiff went on to say that "If the recipients of the email have other knowledge of me and the type of thing I get up to, of course a lot more plausible and potentially exploitable inferences can be drawn."

[18]

All of the things which the plaintiff has asked us to accept as having been pieces of personal information about him are in fact inferences to be drawn from the information that was disclosed. We are willing to accept for present purposes that there may be occasions when information that is expressly disclosed carries with it such an obvious inference that it should be treated as an implicit disclosure of that further information as well. But even so, we are unable to see that any of the propositions in (c) to (f) of the plaintiff’s list are such obvious inferences that they can or should be treated as having been implicitly disclosed with the information that was expressly disclosed.

[19]

The inference in (a) of the plaintiff’s list is arguable, although we put it no higher than that. The proposition in (b) of the list (i.e., that the plaintiff had some interest in who the members of the Board were, or in whether particular people were members) does, however, seem to us to be a fair inference from the express terms of the information that was disclosed. The whole point of what the plaintiff wrote was to find that information out. When that is expressed as a piece of personal information about the plaintiff (e.g. "the plaintiff wanted to know who the members of the Board were") then in our view that can fairly be described as having been an item of personal information about the plaintiff that was disclosed to the Institute.

[20]	Mr Stevens (who appeared for the Privacy Commissioner) contended that in addition to the disclosure of the plaintiff’s name, email address and street address, by forwarding the entire email from the plaintiff to the Institute the Ministry also disclosed:

[a]	That the plaintiff had sent to it (the Ministry) an email in the terms forwarded, and

[b]	The date when the plaintiff had sent his email to the Ministry.

[21]	We agree that these are further pieces of personal information about the plaintiff that were disclosed to the Ministry when it forwarded the emails to the Institute.

[22]	The answer to the first of the preliminary issues, therefore, is that the Ministry did disclose personal information about the plaintiff to the Institute when it forwarded the emails to the Institute, such information comprising:

[a]	The plaintiff’s name (since the plaintiff was identified as the person who had sent the email);

[b]	The date on which the plaintiff had sent the email to the Ministry;

[c]	The plaintiff’s email and street addresses;

[d]	The fact that the plaintiff wanted to know who the members of the Board were; and

[e]	Arguably, the fact that the plaintiff might have had some interest in accounting issues.

[23]

Of course our conclusion that personal information of this sort was disclosed by the Ministry to the Institute falls well short of establishing that there has been an interference with the plaintiff’s privacy. The Ministry is right to say that before any interference with privacy can be found, the plaintiff must also show that he has suffered some sufficiently significant degree of harm (i.e. being harm of one or more of the kinds set out in s.66(1)(b) of the Act). This is not a case involving Principles 6 or 7, in respect of which no such proof is required: see Winter v Jans (Unreported, High Court, Hamilton, CIV-2003-419-000854, 6 April 2004 Paterson J, PJ Davies and L Whiu).

[24]

No doubt the question of what harm the plaintiff suffered as a result of the disclosure by the Ministry (if any) will be the subject of evidence and further argument at any substantive hearing. In the meantime, all that we are asked to determine is whether any personal information about the plaintiff was disclosed to the Institute. We have found that it was, to the extent set out at paragraph 22.

[25]	We therefore turn to the second preliminary question, namely whether the disclosure was such as to have been protected by the exception in Principle 11(a) of the Act.

Was the Disclosure Protected by Principle 11(a)?

[26]

The Ministry submits that any disclosure of personal information was in any event protected by Principle 11(a) because such disclosure as took place was within the purposes for which the information had been "obtained" by the Ministry – more particularly, that the disclosure was for the purpose of assisting the plaintiff to find out what he wanted to know about the membership of the Board.

[27]

One of the difficulties with this part of the argument is that the plaintiff’s email of 15 May 2002 to the Ministry was unsolicited. Thus although it can be said that the information contained in his email was "obtained" by the Ministry when it was received, it seems somewhat artificial to try and attribute to the Ministry any specific "purpose" it might have had in obtaining the information. The reality is that the information simply arrived in the Ministry’s electronic mail box.

[28]	A similar type of problem has been discussed in Boyle v Manurewa RSA (supra) in respect of a complaint under Principles 3 and 11 (see paras [58] to [63] of that decision). We also refer to the discussion in L v J [1999] NZCRT 9; (1999) 5 HRNZ 616.

[29]

The Ministry submits nonetheless that the plaintiff had a clear purpose which should be taken to be the relevant purpose when assessing the application of Principle 11(a) – namely to find out the names of the members of the Board. It follows, so it was submitted, that the disclosure was clearly within that purpose, or that it was directly related to that purpose. But we can see both conceptual and practical difficulties in assuming that an agency’s purpose or purposes when receiving personal information is or are the same as the individual’s purpose or purposes when sending that information to the agency.

[30]	The question is whether the Ministry had reasonable grounds to believe that disclosure of the information to the Institute was within, or directly related to, the purposes for which it was obtained by the Ministry. As Mr Stevens submitted, this is a controversial issue of fact in this case.

[31]

Perhaps when all of the evidence is in it will be clear that when someone sends this particular Ministry the kind of request for information that is at issue in this case, then the Ministry does have reasonable grounds to believe that it is at liberty to pass the request (including any and all personal information about the requester that is contained in the request) on to a third party. But everything depends on the context. To illustrate the point, the outcome might be influenced if (say) the request included some sensitive piece of personal health information about the requester. Similarly, the outcome might be influenced if the nature of the agency’s activities is not such as to warrant the conclusion that those who correspond with it must be taken to have understood that their correspondence is liable to be referred without consent to a third party.

[32]

We note that in this kind of case, once discloure of personal information has been established then the onus of establishing that any of the exceptions to Principle 11 is applicable lies on the defendant: see s.87 of the Act and L v L (Unreported, High Court, Auckland, AP 95-SW-01; 31 May 2002, Harrison, J).

[33]

In a practical sense, we are confronted with a plaintiff who says in effect "I never asked or expected the Ministry to send my request for information on to the Institute, and there was nothing in my request or in the circumstances of it to justify the Ministry’s decision to send it to the Institute without my consent" and a defendant which says in effect "This is all out of proportion; we were just trying to be helpful and to get you in touch with the agency best able to give you the information you wanted. In any event you have not suffered any harm’’.

[34]

We agree with Mr Stevens that it would be inappropriate to determine the issues raised in this case without a hearing. We therefore answer the second preliminary issue substantially as Mr Stevens has suggested. It may be that the disclosure of personal information about the plaintiff that was made by the Ministry to the Institute was protected by, or allowed under, Principle 11(a), but the issues raised are not appropriate for determination without a hearing at which the relevant evidence is called and can be tested by examination.

Conclusion

[35]	We have concluded that relevant personal information about the plaintiff was disclosed by the Ministry to the Institute, but that it is too soon to say whether that disclosure was allowed under, or protected by, Principle 11(a).

[36]	At the hearing the onus of establishing that the disclosure was allowed under Principle 11(a) will be on the Ministry. The plaintiff will have the onus of establishing what harm he has suffered as a result of the disclosure.

[37]	We reserve any question of costs in respect of the argument canvassed in this decision.

[38]	We will ask the Secretary of the Tribunal to contact the parties in order to arrange a telephone conference with the Chairperson of the Tribunal so as to discuss what further steps are required before the matter can be given a date for substantive hearing.

R D C Hindle
Chairperson


I Vodanovich
Member


P J Davies
Member