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Director of Human Rights Proceedings v Commissioner of Police [2007] NZHRRT 5 (27 February 2007)
Last Updated: 8 May 2007
Decision No. 5 /07
Reference No. HRRT 12/06
BETWEEN THE DIRECTOR OF HUMAN RIGHTS
PROCEEDINGS
Plaintiff
AND COMMISSIONER OF POLICE
Defendant
BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL
Mr R D C Hindle Chairperson
Mr G J A Kerr QSO, JP Member
Dr A D Trlin Member
HEARING: 30 & 31 October
2006 (Hastings)
APPEARANCES:
Mr R Stevens for plaintiff.
Mr A Martin
& Ms C Richardson for defendant.
DATE OF DECISION: 27
February 2007
DECISION
Preliminary
| [1] | This case concerns certain
disclosures that were made by the defendant (‘the Police’) to the
Department of Corrections
(‘Corrections’) in September 2003. The
Police accept that the disclosures were made, but say that they had reasonable
grounds to believe that they were either within the purposes in connection with
which the information at issue had been obtained
by them (Principle 11 (a) of
the Privacy Act 1993 – ‘the Act’), or that they had reasonable
grounds to believe
the disclosures were necessary in order to avoid prejudice to
the maintenance of the law (Principle 11(e)(i)). In any event the
Police say
that in all the circumstances the disclosures did not give rise to any
interference with the plaintiff’s privacy
or, even if they did,
nonetheless there is no reason to award any remedy to the
plaintiff. |
| [2] | At the beginning of the
hearing Mr Stevens made an unexpected application for an order prohibiting
publication of the name of the
complainant, or of any details that might serve
to identify her in connection with the proceedings. Mr Martin understandably
needed
time to consider the matter and take instructions, although he indicated
that his immediate reaction was that the application might
well be opposed. In
any event the Tribunal sought some reassurance, by reference to relevant
authorities, that such an order would
be appropriate. After some discussion the
matter was left (by consent) on the basis that submissions would be filed in
writing after
the hearing. Those submissions have since been received, and so
we deal with the issue of name suppression in this decision as
well. |
| [3] | We begin by setting out the
relevant factual background. We will then deal with each of the issues raised.
|
Background
| [4] | This claim is brought by the
Director of Human Rights Proceedings on behalf of Carol Whatuira (‘the
complainant’). The
complainant is, and has at all relevant times been, a
prison officer employed by Corrections at the Hawkes Bay Prison.
|
| [5] | In April 2003 the
complainant’s sister-in-law suffered (or claimed to have suffered) a
burglary at her home. The sister-in-law
made an insurance claim, saying that a
number of items of her personal property had been stolen including a TV, a
video, a stereo,
a heater, and a computer and related equipment (this list is
not exhaustive). Acting on information received, the Police became
interested
in the matter. |
| [6] | On 24 July 2003 Detective
Sergeant Foley visited the sister-in-law at her home to discuss allegations that
her insurance claim was
false. In doing so he discovered items answering the
description of the ‘stolen’ TV, video, stereo and heater. DS Foley
asked the sister-in-law about the items. The sister-in-law said that they were
not the items that had been stolen in the burglary,
but that they had been
loaned to her by her sister-in-law (i.e., the complainant) until she could
replace what had been stolen.
|
| [7] | DS Foley was not satisfied.
He telephoned the complainant on 25 July 2003. When asked about the matter, the
complainant supported
the account of events that had been given by her
sister-in-law. She told DS Foley that she had indeed loaned the items to her
sister-in-law,
and that it was just a coincidence that they were identical to
the items that had been reported stolen. This information was not
true. (In
retrospect, the complainant accepts that she ought not to have said what she
did. She described her actions as being
‘dumb’, and explained that
she only said what she did out of a sense of loyalty to her
sister-in-law). |
| [8] | The Police subsequently
seized the four items, namely the TV, video, stereo and heater. They were also
interested in the computer
listed in the sister-in-law’s insurance claim.
DS Foley thought it might be at the complainant’s home. On 12 August
2003
he executed a search warrant at her address. He found a computer and printer
that answered the description of the ‘stolen’
goods. When he asked
the complainant about it, she told him that she had had the computer equipment
in her posession for about 18
months. She said that her sister-in-law had
bought it, but had been unable to keep up the hire purchase payments. As a
result the
complainant had agreed to take the computer from her sister-in-law,
and it was she (the complainant) who had been paying the hire
purchase ever
since. |
| [9] | At some point at about this
time the computer was uplifted by the Police from the complainant for
examination to determine whether
or not it was the same machine as that listed
by the sister-in-law in her insurance claim. |
| [10] | DS Foley was sceptical
about the complainant’s explanations at the time, but the evidence that we
heard makes it clear that
the complainant’s explanation with respect to
the computer is and has always been truthful. She did not know that her
sister-in-law
had included the computer amongst the items claimed for in the
false insurance claim. At the hearing in the Tribunal, DS Foley accepted
that
he had never been given any false or misleading information by the complainant
about the computer. |
| [11] | On the other hand, when DS
Foley asked the complainant about the other four items on 12 August 2003 the
complainant repeated that
her sister-in-law’s account was correct and that
she (the complainant) had simply loaned the items to her sister-in-law until
her
sister-in-law could obtain replacements. When pressed, the complainant said
that she had nothing further to say on the matter.
|
| [12] | Later that day, the
sister-in-law was arrested and charged with making a false insurance claim. DS
Foley told us that as he was leaving
the Police Station that evening he found
the complainant waiting in the foyer. She had evidently been waiting for her
sister-in-law
to be bailed by the Police. DS Foley again discussed the matter
with the complainant, albeit briefly. The complainant repeated
that she had
nothing more to say about the matter. |
| [13] | The complainant
subsequently telephoned DS Foley to ask when she could have the computer back.
DS Foley told her that he still had
some further enquiries to make. But on 15
August 2003 the complainant telephoned him again and told him that she would be
calling
that afternoon to uplift her computer. DS Foley agreed, but told her he
would need to talk to her again when she came in. The complainant
did not
recall that he had said he wanted to talk to her again.
|
| [14] | The complainant was under
the impression that DS Foley might be leaving work early on 15 August 2003. She
was anxious to make contact
with him before he left so she could get the
computer back. But she did not finish her shift at the local prison until
4.00pm.
As a result she did not have time to go home and get changed. She was
still dressed in her prison officer’s uniform when she
arrived at the
Police station. We note that, while it is clear the Police had their suspicions
about the complainant’s involvement
in the false insurance claim, to this
point there had not been any discussion about the possibility of charges being
laid against
the complainant. She certainly was not expecting what occurred
when she got to the Police station. |
| [15] | After the computer had been
loaded into the car DS Foley told the complainant that he had reviewed the
situation and decided that
she (the complainant) should be charged with being a
party to the false insurance claim. |
| [16] | From this point there are
significant differences in the accounts of events that we were given by the
complainant on the one hand,
and by DS Foley and Detective Senior Sergeant
Gregory on the other. DS Foley said that the complainant was taken into the
charge
room at the Police Station, but as she was in her prison officer’s
uniform she was spoken to in an interview room because that
was more private. A
charge sheet was filled in, and the complainant was given the usual caution
about not being obliged to say anything.
DS Foley said she was also advised
that she was entitled to consult with a lawyer. He said that the complainant
indicated she had
nothing further to say, and confirmed that she wanted to
discuss matters with a lawyer. After some further discussion, the complainant
was returned to the charge room for further processing and bailing. DS Foley
said that she was offered an opportunity to telephone
a lawyer from a list of
lawyers and using a telephone in the charge room, but the complainant’s
evidence was to the contrary.
She said that she was not given any effective
opportunity to make contact with a lawyer. |
| [17] | The charge that was brought
against the complainant by the Police was referred to in evidence as being that
of ‘using a document’.
It emerged that this was a shorthand way of
referring to s.229A of the Crimes Act 1961. That section
provides: |
"229A Taking or dealing with
certain documents with intent to defraud
Every one is liable to imprisonment for a term not exceeding 7 years who,
with intent to defraud,--
| (a) | Takes or obtains
any document that is capable of being used to obtain any privilege, benefit,
pecuniary advantage, or valuable consideration;
or |
| (b) | Uses or attempts
to use any such document for the purpose of obtaining, for himself or for any
other person, any privilege, benefit,
pecuniary advantage, or valuable
consideration." |
| [18] | We will return to the issue
later in this decision but we note here that, despite repeated expressions of
confidence by the Police
at the time that they would obtain a conviction against
the complainant on that basis, the reality is that the charge of ‘using
a
document’ was never really appropriate. Perhaps charges of obstructing
justice, or aiding and abetting, or being an accessory
to the offence might have
been considered. But there was nothing in the evidence given to us – and
certainly nothing in the
evidence we heard as to what the Police knew of the
situation at the time the complainant was charged – to show any connection
between the complainant on the one hand and, on the other, the only document
that the Police could possibly have referred to in this
context (namely the
insurance claim). The complainant had not signed that document. There is
nothing to suggest that she was aware
of what it contained it when it was signed
and proffered by her sister-in-law to the insurance
company. |
| [19] | While the complainant was
sitting in the charge room she was noticed by DSS Gregory. DSS Gregory was the
senior officer at the Napier
Police Station, in charge of the Napier CIB. He
noticed the complainant because she was wearing a prison officer’s
uniform.
DS Foley left the charge room and gave DSS Gregory a description of
what the issues were, and why the complainant was being
charged. |
| [20] | DSS Gregory gave evidence
to the Tribunal that, after being briefed by DS Foley, he formed the view that
the evidence against the
complainant was compelling. He decided to intervene.
He went into the charge room and discussed the matter with the her. As a
result
he understood that she was rostered to be working at the prison that weekend
(these events took place late on a Friday afternoon).
His evidence
was: |
". . .I cannot be sure of the context of her telling me that, but I think it
was in the context of her asking about bail. I expressed
my view that the
Prison Superintendent should be informed of her arrest prior to her starting
her next shift. I also expressed my view that the Prison Superintendent
should be informed of the particular circumstances of the alleged
offence and
the strength of the evidence supporting the charge. My view was reinforced by
Carol’s denials of facts which I believed could be proven with the
evidence Dectective Sergeant Foley had gathered. She was insisting that
she had
done nothing wrong and that the charge was unjustified. I was aware that she
would be required to report her arrest to the
prison authorities under the
provisions of her employment. However, given that I believed that she was being
untruthful to us, I
was concerned that she would not be truthful with the prison
and that would prevent the Prison Superintendent from making an accurate
assessment of the risks that Carol posed to the running of the prison. I
conveyed my concerns to Carol and said that under the circumstances
I
needed to tell the Superintendent that she had been arrested and the evidence
that supported the charge. She said that she wanted
to tell them. I repeated
my concerns that she would not tell them the full facts, as she had not been
truthful with us. There was
an acceptance from both of us that the Prison
authorities needed to be informed, the difference of opinion was over who would
inform
them and the content of what they would be told."
| [21] | There was considerable
disagreement between the complainant and DSS Gregory as to what happened next.
The complainant’s evidence
was that DSS Gregory told her he was going to
telephone the Prison Superintendent and when she objected that he had no right
to do
so, he picked up the phone and said "watch me". It was her
evidence that he telephoned the Superintendent then and there, although she said
that when she realised what was happening
she ‘freaked out’ and did
not have a good recollection of what was then said by DSS Gregory on the phone.
For his part,
DSS Gregory said that he did not telephone the Superintendent at
any time that the complainant was present. Instead he went back
to his own
office to make the call. It was his recollection that when he called the prison
he was unable to get hold of the Superintendent.
He left a message for the
Superintendent to call him back. |
| [22] | The complainant was given
Police bail and was released from the Police station at about 5.30 pm. We do
not know when DSS Gregory
spoke to the Superintendent, but it is clear that he
did so sometime later that evening (we took it to be accepted by the Police
that
DSS Gregory spoke to the Superintendent before the complainant spoke to her
manager at the prison that evening). |
| [23] | As will be clear, the
discussion that took place between the Superintendent and DSS Gregory was not
one that the complainant had authorised
or agreed to. To the contrary, DSS
Gregory’s evidence establishes that he was well aware throughout that the
complainant wanted
to be the first one to inform her employer of what was taking
place. |
| [24] | When DSS Gregory spoke to
the Superintendent that evening he conveyed to her the detail of what he
understood the case against the
complainant to be. He was anxious to give the
Superintendent the details because he considered that it was important for her
to
have the full and unabridged version (at least, the version of events
according to the Police) so that she could make a properly
informed decision
about what to do in regard to the complainant – in particular, as to
whether or not the complainant would
be allowed to return to work. The Police
admit that when DSS Gregory and the the Superintendent spoke on the evening of
Friday 15
August 2003, DSS Gregory advised the Superintendent that the
complainant had been arrested; what the charge against her was; that
it related
to assisting a close relative in respect of insurance fraud; that the
complainant would be bailed; and that she would
be appearing in Court. In
evidence DSS Gregory gave the following account of his conversation with the
Superintendent: |
"I told her what Carol had been arrested for, and the circumstances of the
offence as alleged by the Police. I told her that Carol
was denying that she
had done anything wrong and was sticking by the explanation she had originally
given the Police that supported
her sister-in-law’s explanation. I stated
that we believed we could disprove these explanations and outlined the evidence
that disproved the explanations and supported the charge. I also explained to
the Superintendent why I was contacting her. I said
that I was concerned that
Carol would not tell the prison authorities the truth and a concerning feature
of the offence was that
it demonstrated Carol’s susceptibility to having
her judgment improperly influenced by friends or relatives. I said that I
did
not know what position of trust Carol was in at the prison or if there were any
prior incidents or suspicion relating to Carol
that the information I was giving
would be relevant to. Therefore, I was informing her (the Superintendent) as
she was in the best
position to assess the information and judge what action
needed to be taken at the Prison."
| [25] | We will return to the
reasons given by DSS Gregory for his decision to discuss matters with the
Superintendent in this way later in
this decision. We note here, however, that
at least with respect to the computer the Police suspicions at that time were
unfounded.
It follows that to the extent that what DSS Gregory told the
Superintendent that evening concerned allegations of unlawful conduct
in respect
of the computer, what he said was wrong. |
| [26] | Contrary to the Police
impression of the circumstances at the time, it seems that the complainant was
not in fact rostered to work
again until the next Monday morning. In the
meantime she called her manager at the Prison and told him what had happened.
|
| [27] | When the complainant
arrived at work on Monday morning she was told that she was required to attend a
meeting concerning the matter.
It was clear to her that by then a number of
people in the Prison were aware of what was going on. The meeting took place at
about
8.30 a.m. on Monday, 18 August 2003. Notes were taken at the meeting, and
the copy we were shown established that the complainant
was given 48 hours
special leave on pay to sort the matter out. |
| [28] | Shortly after midday that
day a facsimile was received by the Police from a firm of lawyers purporting to
act for the complainant,
and asking for full disclosure to be made in respect of
the charges against her. This is something of a curiosity in the evidence.
The
complainant was adamant that she had not instructed any lawyers to act for her,
and specifically that she had no contact with
the firm in question at that time
at all. She could not explain why the facsimile had been sent. Considerable
attention was given
to this issue in the evidence, but in the end we are not
certain that it assumes the significance that was attached to it. We say
that
because the complainant’s evidence made it clear that her real concern was
not so much about whether or not she had had
an opportunity to see a lawyer
before her employer was informed of events, but that DSS Gregory’s conduct
on the Friday evening
had robbed her of the opportunity to be the first to
disclose her circumstances to her employer. |
| [29] | The complainant also said
that she did not have an opportunity to see a lawyer before she decided to admit
the charge against her.
We do not accept that. She had the whole weekend
within which to contact a lawyer had she chosen to, and she could also have done
so after the meeting at the Prison on Monday morning when she was given 48 hours
leave to sort her situation out. |
| [30] | In any event, at about 2.30
p.m. on Monday 18 August 2003 the complainant attended the Police Station and
made a voluntary statement.
She repeated that the information she had given
about the computer was correct, but she accepted that her previous statements
that
she had loaned the TV, video, stereo and heater to her sister-in-law were
untrue. |
| [31] | Once an admission had been
signed, the Police reviewed the prosecution against the complainant. At that
point the matter was due
for its first call in Court on the morning of 20 August
2003. DSS Gregory and DS Foley judged that the circumstances warranted the
application of the diversion scheme. The complainant accepted that. She
appeared in Court on 20 August 2003 along with her sister-in-law.
The
complainant admitted a charge of using a document, and later paid a donation of
$200 to a charity. After the terms of her diversion
arrangements had been
fulfilled the charge against her was withdrawn by the Police on 3 September
2003. |
| [32] | Her circumstances were also
considered by Corrections, but after its investigation Corrections simply closed
its file on the matter
without taking any steps against the complainant. In a
letter dated 20 November 2003 the complainant’s manager at the Prison
recorded that the complainant’s conduct had arisen out of her naivety and
a desire to help a family member. His letter reminded
the complainant of the
need to be vigilant when dealing with others, and especially her family, so that
such dealings did not bring
either her or Corrections into disrepute.
|
| [33] | As far as Corrections is
concerned, that seems to have been an end of the matter. Having heard evidence
as to what happened in some
detail, we think that the conclusion reached by
Corrections was entirely appropriate. |
| [34] | The complainant
subsequently brought the matter to the attention of the Privacy Commissioner.
In due course the Privacy Commissioner
referred the matter to the Director of
Human Rights Proceedings, and these proceedings were
commenced. |
| [35] | There was some discussion
during the hearing as to what expectations Corrections has for its employees,
and in particular we were
referred to the Corrections’ Code of Conduct for
its employees (‘the Code’). We were shown both the 1997 and 2003
editions of the Code during the hearing, but whichever of those documents is
referred to, the relevant obligations imposed on the
complainant were as
follows: |
| [a] | Under a broad principle that
employees should not bring their employer into disrepute through their private
activities, there was
an obligation in the following
terms: |
"You must inform your manager immediately:
| • | Of any criminal
charge laid against you in a criminal court and any convictions you
receive |
| • | If you apply for
bankruptcy or become bankrupt |
Every situation will be judged on its own merits but, in general, if you
are convicted of an offence and receive a custodial or community-based
sentence
your employment will be discontinued.
If you are convicted of an offence which is punishable by custodial or
community-based sentence your continued employment will be
subject to the
discretion of the General Manager of your service or group.
Some situations leading to a Court appearance may constitute serious
misconduct and thus render your continued employment inappropriate,
even though
you may be placed on diversion or discharged without conviction."
| [b] | Under the
general heading that employees should perform their official duties honestly,
faithfully and efficiently, respecting the
rights of the public, colleagues and
offenders there was an obligation in terms that employees
must: |
"Inform your manager promptly if you are involved in any activity, or have
a commitment which may or could be seen by others to conflict with the
performance of your duties or the goals of the Department."
| [36] | The first point we note is
that where a Corrections’ employee is faced with the possibility of having
to appear to answer criminal
changes there is no automatic assumption that his
or her employment will be terminated. If there is a conviction the Code
indicates
that discontinuance of employment is likely, but it also makes it
clear that each case will be judged on its own merits.
|
| [37] | The second point to be
noted is that, strictly speaking, the moment at which an employee is obliged to
notify Corrections of any criminal
charge brought against him or her is when
that charge is laid against the employee in a criminal court. This aspect
assumed some
significance in the argument, since it was DSS Gregory’s
concern that if he did not notify the Superintendent on the Friday
evening
(i.e., before the charge was laid in court) then the complainant would or might
well not do so before she started her next
shift. But, while we can accept that
an employee finding himself or herself in the position that the complainant
found herself in
that Friday evening would be well advised to inform his or her
senior officer in Corrections without waiting for charges to be formally
laid,
failure to do so before the charge was laid in court would not of itself have
been a breach of the Code. |
| [38] | Finally, we note that the
principle relating to conflicts of interest is accompanied by various examples
of situations that might
give rise to the sort of concern which that part of the
Code seeks to address - such as, for example, being involved in a selection
process and becoming aware that there is a personal connection with one of the
applicants, or being involved in the evaluation of
a tender in circumstances
where there is a personal interest in the outcome, and so on.
|
| [39] | Despite what was submitted
for the Police, we do not agree that this part of the Code can really be
interpreted as creating an obligation
to report involvement as a defendant in
proceedings in the criminal courts any earlier than is expressly provided for in
that part
of the Code which deals directly with cases of that sort. Perhaps one
can envisage circumstances where that might be the effect
of the conflict of
interest part of the Code (for example, perhaps, if a prison officer were
engaged in illegal activities with inmates),
but there is no suggestion of that
here. Again, the point is that whatever concerns DSS Gregory had on the evening
of 15 August
2003, the complainant was not then under an explicit obigation in
terms of the Code to notify Corrections as to what was happening.
|
| [40] | As we have said, when she
went to the Police Station that afternoon the complainant did not expect that
she was going to be charged.
At the time of her discussion with DSS Gregory she
had quite literally only just been charged. We agree with Mr Stevens that in
those circumstances she had every right to have a reasonable opportunity to
evaluate her situation, and take legal advice if she
wanted it, before she
decided how she was going to handle her situation, and before she went to her
employer. |
| [41] | In any event, and despite
all the debate as to what her position was or might have been under the Code on
the evening of 15 August
2003, the fact is that the complainant did notify her
manager at the prison at about 7.30 pm that evening.
|
| [42] | Against that background, we
turn to consider the various issues that were raised in argument.
|
Contravention of Principle
11?
| [43] | The Police are an agency to
which Principle 11 of the Act applies. It is accepted that when DSS Gregory and
the Superintendent spoke
on the evening of Friday 15 August 2003, DSS Gregory
disclosed personal information about the complainant to Corrections, including
the facts that the complainant had been arrested and charged in relation to the
insurance fraud, that the Police thought the evidence
against her to be
‘compelling’, and that the Police thought the matter sufficiently
serious to warrant the step of informing
the prison authorities of what had
occurred notwithstanding that the matter had not yet come before the Courts. We
have set out
DSS Gregory’s account of his conversation with the
Superintendent at paragraph [24] above. |
| [44] | It follows that the
circumstances establish a prima facie contravention of Principle 11. The
onus is on the Police to show that any one or more of the exceptions to that
Principle are available
to them to justify the
disclosures. |
| [45] | The first exception relied
upon by the Police is Principle 11(a) which provides that a disclosure that
would otherwise be prohibited
can be justified if the agency believes on
reasonable grounds ". . . that the disclosure of the information is one of
the purposes in connection with which the information was obtained or is
directly
related to the purposes in connection with which the information was
obtained ....". |
| [46] | It was submitted for the
Police that information of the kind at issue might be possibly be disclosed to
an employer. It was also
submitted that it should thus be regarded as
sufficiently connected to the purposes for which it was obtained, to justify the
conclusion
that disclosure to the employer in this case should be seen as being
at least related to a purpose for which the information was
obtained by the
Police (and so come within Principle 11(a)). But the Police were investigating
the false insurance claim for the
purpose of deciding whether or not charges
could be brought and, if so, against whom. Although DSS Gregory subsequently
took it
upon himself to tell the complainant’s employer about the case and
what he thought of it, that step does not of itself justify
the conclusion that
his disclosures must therefore have been within the purposes for which the
information had been obtained by the
Police. We note in particular that where
related purposes are relied upon, the exception in Principle 11(a) requires that
the disclosure
must be shown to have been "directly" related to the primary
purposes for which the information has been obtained. Of course there
are cases
where informing an employer what an employee has been up to is sufficiently
related to the purpose for which the Police
have been obtaining information to
fall within this exception, but (as Mr Martin properly accepted) it cannot be
suggested that the
Police are entitled to invoke the exception in Principle 11
to inform any and all employers of any or all offences that the employer’s
employees have been charged with. |
| [47] | In this case the Police
investigation had not been instigated on information received from Corrections,
it was not concerned with
the complainant’s conduct as a prison officer,
and up until the point that DSS Gregory called the Superintendent it had had
no
connection with Corrections at all. |
| [48] | We add that, despite the
submissions advanced by counsel on this issue, neither DSS Gregory or DS Foley
suggested in their evidence
that there was any direct relationship between the
disclosure of the information to Corrections on the one hand, and the purposes
for which the information had been obtained by the Police on the other. When
DSS Gregory was asked about this aspect of the case,
for example, he described
the giving of information to Corrections as a ‘by-issue’ of the
investigation. He agreed it
would be fair comment to say that the information
that was collected by the Police was for the purpose of maintaining the law and
prosecuting offences, but that giving it to the prison authorities was nothing
more than incidental or tangential to that. It was
not one of the purposes for
which the Police had been out to get the information they had obtained about the
complainant. There
was no suggestion that Principle 10 might have been
available to the Police if Principle 11(a) was
not. |
| [49] | It is also to be noted that
the idea of giving the information to Corrections only emerged after it had been
obtained. |
| [50] | Mr Martin submitted that
the case for the complainant was in effect asking the Tribunal to put ‘a
gloss’ on the wording
of Principle 11(a), to the effect that it should be
read as somehow giving the complainant the opportunity to make the relevant
disclosures
to Corrections herself. But, with respect, we do not see the case
that way. The onus is on the Police to establish that the exception
applied at
all. We are not persuaded that it did. We do not consider that this involves
adding anything to, or taking anything
away from, the wording of Principle
11(a). |
| [51] | The second possible
exception to Principle 11 that was referred to on behalf of the Police was
Principle 11(e)(i) which provides an
exception to the non-disclosure principle
in circumstances where an agency holding relevant information believes on
reasonable grounds
that non-compliance is necessary ". . . to avoid prejudice
to the maintenance of the law by any public sector agency, including the
prevention, detection, investigation,
prosecution and the punishment of offences
. . .". |
| [52] | When asked to explain what
had motivated him to insist on speaking to the Superintendent with urgency on
that Friday night, DSS Gregory
resorted to assertions of a very general kind,
such as that there is an enormous problem in prisons with prison officers who
are
influenced by inmates to supply drugs or do other unlawful acts. We accept
the Police had grounds for concern about the complainant’s
truthfulness in
supporting her sister-in-law’s version of events. But we do not accept
that went very far towards establishing
grounds for concern that the complainant
represented such an immediate risk to the prison system that the officer in
charge of the
Napier CIB was justified in contacting the Superintendent of the
Prison urgently to tell her what he thought he knew about the case.
The reality
is that the Police had no specific concerns arising out of what was known about
the complainant at that time to justify
the conclusion that disclosure of the
information at issue to the Superintendent that very evening was warranted in
the interests
of maintenance of the law, or the prevention, prosecution or
punishment of any offence. |
| [53] | It is not as if any lengthy
period of time had passed during which Corrections had not been notified of the
criminal charge. And
even if one accepts that DSS Gregory feared that the
complainant might not put things quite the way he wanted them conveyed to
Corrections,
she would at a minimum have had to explain to Corrections that she
had been charged, what she had been charged with, and when she
was due to appear
in Court. Those things were inescapable. If the complainant had not disclosed
those matters to Corrections it
was inevitable that Corrections would have found
out at least at the first call of the case in Court, namely 20 August 2003.
|
| [54] | We add that we do not see
that the fact that the complainant was a prison officer makes any difference in
this case. Even accepting
that very high standards of conduct are expected of
prison officers (Mr Martin noted that under the Penal Institutions Act 1954
–
which was the statute in force at the relevant time – prison
oficers acting as such have all of the powers of a Police constable)
– the
fact is that DSS Gregory gave the complainant no chance at all to deal with her
situation in respect of her employer. |
| [55] | We wish to make it clear
that our conclusions in this case do not amount to saying that the Police can
never rely on Principle 11(e)(i)
(or, for that matter, any of the other
exceptions in Principle 11), when they believe that an employee constitutes a
risk to an employer
or anyone else. The situation would be very different, for
example, in a case in which the Police had been approached by an employer
to
investigate alleged employee dishonesty, or if they became aware of a fraud or
theft that was about to take place. Everything
depends on the circumstances,
but we have a clear view that the circumstances in this case never came close to
justifying the disclosures
that were made under Principle
11(e)(i). |
| [56] | We have not been persuaded
that either of the exceptions in Principle 11(a) or Principle 11(e)(i) are
available to justify the disclosure
in this case.
|
| [57] | We are satisfied that a
contravention of Principle 11 has been
established. |
Interference with
Privacy?
| [58] | The next question is
whether or not the contravention of Principle 11 that has been established
constituted an interference with the
privacy of the complainant, having regard
to the provisions of s.66 of the Act. In particular, ss.66(1)((b)(i)-(iii) of
the Act
are relevant. |
"66 Interference
with privacy
(1) For the purposes of this Part of this Act, an action is an interference
with the privacy of an individual if, and only if,
| (a) | in relation to
that individual, |
(i) The action breaches an information
privacy principle; or
(ii) The action breaches a code of practice issued under section 63
of this Act (which relates to public registers); or
(iii) The provisions of Part 10 of this Act (which relates to
information matching) have not been complied with; and
(b) In the opinion of the Commissioner or, as the case may be, the
Tribunal, the action
(i) Has caused, or may cause, loss, detriment, damage, or injury to that
individual; or
(ii) Has adversely affected, or may adversely affect, the rights, benefits,
privileges, obligations, or interests of that individual;
or
(iii) Has resulted in, or may result in, significant humiliation, significant
loss of dignity, or significant injury to the feelings
of that
individual."
| [59] | The Police submit that
there was no adverse effect on the complainant’s rights or interests, and
that she did not suffer any
significant humiliation or loss of dignity. It is
noted (amongst other things) that she was obliged to tell her employer what had
happened - so it is not as if the incident could ever have gone unnoticed by
Corrections. In addition, the outcome of Corrections’
investigation was
that no steps were taken against her. The reality is that the complainant had
been untruthful in what she told
the Police, and any embarrassment she later
felt about her conduct in that regard is not something that can be sheeted home
to the
Police. The submissions for the Police also drew attention to the
decision in K v Police Commissioner (CRT Decision 33/99; 26 November
1999) which emphasises that the word ‘significant’ in s.66 means
something more than
the ‘usual’ emotional harm (although the test is
a subjective one to be considered from the perspective of the aggrieved
person). |
| [60] | But we are satisfied that
the complainant was very upset, not just about being charged on 15 August 2003,
but in particular about
the way in which DSS Gregory had conducted himself. She
had told him that she wanted to tell her employer what was happening, but
he was
not satisfied by that. It was her evidence that she felt sick throughout the
weekend of 16/17 August 2003 because she thought
that her boss by then would
know what had happened (which was true). She also thought that she would
probably be dismissed when
she turned up to work on Monday. When she did arrive
at work on 18 August 2003, it became clear to her that others (i.e., apart
from
her manager whom she had contacted on the Friday evening, and the
Superintendent) had some idea of what was involved. It was
the
complainant’s evidence that she felt ‘totally bullied’
and ‘backed into a corner’ by what DSS Gregory had done. She
said that she did not see the point of going to see a lawyer, because as she put
it "the damage had already been done". The complainant also said that
she was upset by these events for months and months afterwards.
|
| [61] | In her evidence at the
hearing the complainant also referred to having seen her doctor but (despite
being given the opportunity to
do so) Mr Stevens indicated that the Director was
content to put his case forward without any relevant medical records being
obtained
for inspection and, if appropriate, production to the Tribunal. In the
circumstances we do not think that we are in a position to
place much weight on
the evidence in this particular respect. |
| [62] | Nonetheless we have no
doubt that the complainant suffered significant humiliation, loss of dignity and
injury to her feelings arising
out of what DSS Gregory did. It is true, of
course, that she would have been embarrassed by the charge that had been laid
against
her in any event, but we think it would be unrealistic not to recognise
that the way in which the information was conveyed to the
Superintendent of the
prison compounded the difficulties of her position. Certainly it heightened her
perception of the difficulties
she was confronted by. We find that it made her
sense of humiliation and loss of dignity significantly greater than it would
otherwise
have been. |
| [63] | Aside from the question of
emotional harm, we are also satisfied that the way in which these events
unfolded adversely affected her
interests (see s.66(1)(b)(ii) of the Act). The
Police admit that DSS Gregory’s actions deprived the complainant of the
opportunity
to choose the time and means of advising her employer of the events
at issue, or to seek legal advice before advising her employer,
or to be the
first to advise her employer. |
| [64] | We have no doubt that it
can make a significant difference in a situation like this as to who conveys
news of a charge against an
employee to the employer. The Code made it clear
that it was the complainant’s responsibility to notify Corrections. The
complainant told DSS Gregory that she wanted to be the one to report events to
Corrections. We consider it obvious that in a situation
like this it will
almost invariably be preferable for someone in the complainant’s position
to be the first person to inform
his or her employer. At the very least, that
enhances whatever chance there is that the employer might give credit to the
employee
for being candid in coming forward with the information. In addition,
the complainant ought to have had a reasonable opportunity
to evaluate her
situation and take legal advice if she wanted to do so before going to her
employer. The steps DSS Gregory took
deprived the complainant of her autonomy
in respect of informing the prison authorities. They also removed any chance
she had of
taking legal advice before approaching her
employer. |
| [65] | Our concern about the
situation in this case is compounded by the fact that the information that DSS
Gregory held out to the Superintendent
was said to establish a compelling case
against the complainant (when at least in respect of the charge of using a
document, the
Police now accept that was not appropriate), and included an
assertion that the complainant had been dishonest about the computer
(when in
fact she had not). Matters are made worse by the fact that the call was
directed to the most senior officer of the Prison
service in the area, and came
from a senior officer of the Police station. Having regard to what had happened
and what was at issue,
there was a distinct lack of proportionality about
that. |
| [66] | On the other hand, we do
not see that the way in which events unfolded were such as to deny the
complainant any opportunity to take
legal advice about the charge of
‘using a document’ before she went to the Police and admitted guilt
in that respect.
No doubt she felt considerable pressure to resolve the issue
very quickly so that Corrections would not take any disciplinary measures
against her: keeping her job was of paramount importance to her. But we do not
accept that her decision to admit guilt and accept
diversion can be attributed
exclusively to what DSS Gregory did. Although we have found that his conduct
caused her humiliation,
loss of dignity and injury to feelings, other factors
were relevant to a decision to accept diversion. Not the least of those was
that the complainant had been untruthful in her dealings with the Police. If
the ‘using a document’ charge was wrong,
other (and potentially more
serious) charges might have been substituted. The complainant’s eagerness
to extricate herself
from the situation is understandable. That would have been
so even if DSS Gregory had not spoken to the Superintendent at all.
|
| [67] | Nonetheless, for the
reasons given at paragraphs [60] to [66] above, we are satisfied that the
disclosures by DSS Gregory to Corrections
on 15 August 2003 amounted to an
interference with the complainant’s
privacy. |
Remedy
| [68] | In view of our findings we
think it clear that there ought to be a declaration made in appropriate terms
under s.85(1)(a) of the Act.
We therefore declare that the disclosures by DSS
Gregory to Corrections on 15 August 2003 as set out in paragraph [24] above gave
rise to an interference with the complainant’s
privacy. |
| [69] | The only other
remedy that is sought is an award of damages. |
| [70] | Section 88(1)(b) of the Act
allows the Tribunal to award compensatory damages for interference with privacy
in a situation in which
the plaintiff has suffered loss of a benefit, whether or
not of a monetary kind, and which the plaintiff might reasonably have been
expected to obtain but for the interference. The fact that DSS Gregory spoke to
the Superintendent as he did denied the complainant
any opportunity to be the
first to tell her employer what was happening. It also meant that she could not
evaluate her position
or take legal advice before Corrections learned what had
occurred. This is not an entirely hypothetical point, since it is at least
conceivable that if the complainant had been given a chance, she might have been
able to go back to the Police and persuade them
to withdraw the prosecution
against her if she made a full and truthful statement (although we acknowledge
that the timing of events,
and the attitude being taken by the Police, made that
a fairly remote possibility). In any event, we are satisfied that the
complainant’s
autonomy was compromised in these respects. We regard these
as involving the loss of opportunities which the complainant could reasonably
have expected to have, but for the interference with her privacy.
|
| [71] | But at the same time we
agree with Mr Martin that, in the end, what DSS Gregory did seems to have made
little difference to the way
in which Corrections responded to the matter.
Corrections came to the view that what had happened did not warrant any
intervention,
and the matter was treated as closed. No disciplinary action was
taken. And (aside from what we see as a remote possibility that
the complainant
might have been able to persuade the Police to drop the charge against her
altogether) this was not a situation in
which the whole affair might somehow
have been kept from Corrections altogether. The complainant’s obligations
under the Code
are relevant, but in any event it was inevitable that Corrections
would have learned about what had taken place when the complainant’s
case
was called in Court on 20 August 2003. |
| [72] | In argument, the Police
took the position that there had been no breach of the Act and, in any event, no
interference with the plaintiff’s
privacy. As a result the Police
submissions did not address the question of quantum. For his part, Mr Stevens
was content to leave
the assessment of any award to the Tribunal. He did,
however, note that if we were to award damages for the loss of an opportunity
under s.88(1)(b), then we ought to bear in mind that in Winter v Jans
(Unreported, High Court, Hamilton, CIV 2003 – 419 – 854, 6 April
2004 per Paterson, J, Ms P J Davies & Ms L Whiu)
awards of $4,000 each were
made to two plaintiffs in respect of facts which he suggested were less
compelling that those at work
here. Our own assessment, however, is that the
present case is less clear. In Winter v Jans the awards under s.88(1)(b)
were made to plaintiffs who were left in the position of never knowing what they
might have found had
they been able to access personal information that had once
been held by the defendant about them. In the present case, any chance
the
plaintiff might have had to persuade the Police to drop the charge against her
in such a way and time that her employer would
never need to know of it, was
very remote indeed. And, aside from that, as we have said it was inevitable
that the complainant would
have had to deal with Corrections about the matter
even if DSS Gregory had not spoken to the
Superintendent. |
| [73] | As a result we see this as
being a case in which the most obvious basis for an award is s.88(1)(c) rather
than s.88(1)(b) of the Act;
certainly an award can be fixed under s.88(1)(c) in
such a way as to meet the circumstances of the case adequately. We therefore
deal with the case under that heading only, and assess our award on the basis
that the complainant ought be compensated in appropriate
measure for the
humiliation, loss of dignity, and injured feelings that she suffered as a result
of the disclosures made by DSS Gregory
on 15 August
2003. |
| [74] | The approach to assessing
an award of damages for the intangible harms of humiliation, loss of dignity and
injury to feelings has
been discussed in cases coming under or which are
relevant in the context of the Tribunal’s jurisdiction under the Health
and
Disability Commissioner Act 1994 – see, for example, Director
of Proceedings v O’Neil (2000) 6 HRNZ 311, L v Robinson
[2003] 3 NZLR 499 and R v Eade (Unreported, Auckland District Court, NP
3604-97, 12 May 2000, Judge Robinson) as noted in Director of Proceedings v
Peters (HRRT Decision 1/07; 19 January 2007).
|
| [75] | There is a collection of
Tribunal decisions which discuss the assessment of quantum in respect of awards
of the kind we are now asked
to make in Evans, Show me the Money: Remedies
under the Privacy Act (2005) 36 VUWLR 46. We also refer to the appendix to
the decision in CBN v McKenzie Associates (HRRT Decision 48/04; 30
September 2004) and Yeo v McDowell (HRRT Decision 11/06; 29 March 2006 at
paras [46] – [51]). Of particular relevance are awards in cases
concerning disclosure
of information contrary to Principle 11. Our sense is
that the evidence of the harm suffered here makes cases like Parker v
Ministry of Agriculture and Fisheries (HRRT Decision 9/02; 23 September
2002), B v Commissioner of Inand Revenue (CRT Decision 8/00; 12 May 2000)
and Yeo v McDowell (supra) most helpful to our assessment. We also note
that in Winter v Jans (supra) the High Court awarded $3,500 to each of
two plaintiffs for the humiliation, loss of dignity and injury to feelings that
they had suffered as a result of a breach of the Privacy Act, but in
circumstances where it was held that the humiliation, loss of
dignity and injury
to feelings established by the evidence were not
significant. |
| [76] | Of course each case depends
on its own circumstances. In our view, the assessment of damages in this case
needs to reflect the humiliation,
loss of dignity and injury to feelings
suffered by the plaintiff on 15 August 2003, and the fact that those feelings
lasted for some
months after the events. Equally, the Police cannot be required
to compensate the complainant for the embarrassment she felt when
her
untruthfulness was revealed, or the fact that she was charged with the offence
of using a document. For reasons already given,
we have not been persuaded that
what DSS Gregory did on 15 August 2003 had the effect of preventing the
complainant from taking legal
advice in respect of the charge. It is also
relevant that the employment issues between the complainant and Corrections had
been
resolved by the end of November 2003; this is not a case of significant
on-going emotional harm. |
| [77] | In our
assessment damages under ss.85(1)(c) and 88(1)(c) of the Act should be fixed at
$5,000.00. We make an order
accordingly. |
Name
Suppression
| [78] | What started at the
commencement of the hearing as an un-notified application for orders prohibiting
the publication of the name and
identifying details of the complainant has grown
considerably in scope. |
| [79] | The Director now invites
the Tribunal to review its approach to name suppression in Privacy Act
proceedings in a general way. He
asks us to recognise that the importance
attaching to freedom of speech and the principles of open justice (as
articulated by the
Court of Appeal in cases like R v Liddell [1995] 1
NZLR 538, Lewis v Wilson & Horton [2000] NZCA 175; [2000] 3 NZLR 546 and Re Victim
X [2003] 3 NZLR 230) do not bear upon the approach that the Tribunal ought
to adopt – at least, not to anything like the extent that has previously
been imagined. Instead the Director would like the Tribunal to make a practice
of prohibiting the publication of names and identifying
details of complainants
in Privacy Act cases. As part of that, we are also asked to routinely produce
Tribunal decisions under the
Privacy Act in an anonymised form. The Tribunal is
urged to hold itself ready and willing to grant name suppression orders in all
cases where it is appropriate, whether or not the plaintiff actually seeks
it. |
| [80] | The argument for the
Director makes mention of the complainant’s likely concerns in this case,
and we will deal with those matters
later. By far the most significant concern
raised in support of the submissions, however, relates to the suggested effect
of a decision
refusing name suppression in this case. After discussing
s.107(3)(b) of the Human Rights Act 1993, and various authorities that
are said
to be relevant, Mr Stevens submits that the yardstick by which the issue of name
suppression in Privacy Act cases in the
Tribunal should ultimately be assessed
is: "Would the prospect of a likely disclosure of the sort anticipated here
tend to dissuade a future bona fide complainant in a similar
situation in future
from coming to the Tribunal with their complaint?".
|
| [81] | The effect of the argument
as a whole is that previously accepted notions in favour of openness should be
replaced by the opposite
– i.e., in effect a presumption that names and
identifying details should be suppressed. |
| [82] | Mr Martin’s initial
reaction to the suggestion at the hearing that there should be an order
prohibiting publication of the complainant’s
name was that the defendant
was likely to oppose the application. On reflection, however, the defendant has
decided to abide the
decision of the Tribunal on the question. Mr Martin has
nonetheless filed a full and helpful submission commenting on aspects of
the
issues concerning name suppression, and drawing attention to relevant
authorities. |
| [83] | We should say at the outset
that we have not been persuaded to accept the rather fundamental departures from
previous practice that
Mr Stevens has suggested. We will set out the reasons
for our conclusion, and then deal with the discretionary factors at work in
respect of the complainant’s particular circumstances in this case below.
But we think it appropriate to start by referring
to a remark made in the Court
of Appeal in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 at para [99], namely that:
"The [Human Rights Review] tribunal cannot grant name
suppression." |
| [84] | The remark is clearly part
of the obiter dicta of the decision. It appears not to have taken
account of s.89 of the Privacy Act, which provides that in proceedings in the
Tribunal
under the Privacy Act certain sections of the Human Rights Act 1993
apply, including the whole of Part 4 of the Human Rights Act.
Amongst the
provisions of Part 4 of the Human Rights Act is s.107 as
follows: |
107 Sittings to be held in public except in special
circumstances
| (1) | Except as provided
by subsections (2) and (3) of this section, every hearing of the Tribunal shall
be held in public. |
| (2) | The Tribunal may
deliberate in private as to its decision in any matter or as to any question
arising in the course of any proceedings
before
it. |
| (3) | Where the Tribunal
is satisfied that it is desirable to do so, the Tribunal may, of its own motion
or on the application of any party
to the
proceedings,-- |
| (a) | Order that any
hearing held by it be heard in private, either as to the whole or any portion
thereof: |
| (b) | Make an order
prohibiting the publication of any report or account of the evidence or other
proceedings in any proceedings before
it (whether heard in public or in private)
either as to the whole or any portion
thereof: |
| (c) | Make an order
prohibiting the publication of the whole or part of any books or documents
produced at any hearing of the Tribunal. |
(4) Every person commits an offence and is liable on summary conviction to
a fine not exceeding $3,000 who acts in contravention of
any order made by the
Tribunal under subsection (3)(b) or subsection (3)(c) of this
section.
| [85] | Section 107(3)(b) may not
be worded in terms that refer expressly and specifically to name suppression,
but it has always been understood
as conferring such a power on the Tribunal.
We agree with Mr Stevens that what was said in the Court of Appeal in Hosking
v Runting does not bind us to the proposition that the Tribunal has no power
to grant name suppression. |
| [86] | To the contrary, a survey
of cases in which name suppression has been raised demonstrates that the power
to prohibit publication in
appropriate circumstances is a significant aspect of
the Tribunal’s procedural powers: see, in the context of the Privacy Act,
cases like CD v Hawkes Bay District Health Board (HRRT Decision 15/02; 19
December 2002); AB v Accident Compensation Corporation (HRRT Decision
17/02, 24 December 2002); G & H v Commissioner of Inland Revenue
(HRRT Decision 19/03, 18 June 2002); DAS v Department of Child, Youth and
Family Services (HRRT Decision 45/04; 10 September 2004); CBN v McKenzie
Associates (HRRT Decision 48/04; 30 September 2004); SBD v FM (HRRT
Decision 33/06; 7 September 2006); QKB & NSN v Commissioner of Police
& Anor (HRRT Decision 38/06; 4 October 2006) and EFG v Police
(HRRT Decision 48/06; 21 December 2006) |
| [87] | Although the
Tribunal’s jurisdiction under the Health and Disability Commissioner Act
1994 stands independently of the Privacy
Act, the Health and Disability
Commissioner Act adopts the same approach by ‘importing’ the
provisions of Part 4 of the
Human Rights Act (amongst others) into proceedings
under it. Thus from a statutory point of view the Tribunal’s powers in
respect of name suppression under the Health and Disability Commissioner Act is
no different than that under the Privacy Act. And,
again, it has been accepted
that the Tribunal has power to make orders prohibiting the publication of names
and/or identifying details
or other evidence in cases under that Act – for
examples and discussion in respect of both interim and permanent orders, see
Director of Proceedings v A (Huang) (HRRT Decisions 35/03 and 51/04; 1
December 2003 and 22 November 2004); Director of Proceedings v Jeffery &
Peteleigh Holdings Limited (HRRT Decision 40/04; 10 August 2004);
Director of Proceedings v SLD (HRRT Decisions 19/04 and 11/05; 21 May
2004 and 27 May 2005); Director of Proceedings v DG (Fan) (HRRT Decisions
2/05 and 3/05, 25 February 2005 and also HRRT Decision 18/05, 28 June 2005);
Director of Proceedings v Leighton (KBM) (HRRT Decisions 27/05 and 28/06,
29 August 2005 and 1 August 2006), and Director of Proceedings v Peters
(HRRT Decisions 25/05, 9 August 2005; 36/06, 25 September 2006 and 1/07, 19
January 2007). |
| [88] | To complete the survey of
cases, we also note that the name suppression power has been considered in cases
under the Human Rights
Act itself, such as BNK v Trainor (HRRT Decisions
30/03 and 18/04; 6 May 2003 and 17 May 2004) and EF v Toon (HRRT Decision
17/05; 30 May 2005). |
| [89] | A review of these decisions
demonstrates that, to date, the approach that has been adopted to the exercise
of the discretion in s.107(3)(b)
of the Human Rights Act has been one that
starts with the principles of open justice, freedom of speech and the right of
the media
to report judicial proceedings as described by the Court of Appeal in
R v Liddell (supra; for a recent and comprehensive discussion about
‘open justice’ and freedom of expression reference can also be
made
to the Report of the Law Commission Access to Court Records (NZLC Report
93, esp at Chapter 2) and Clark v Attorney-General (2004) 17 PRNZ 162).
But where the interests of particular litigants outweigh those considerations,
the Tribunal has been willing to make orders. Obvious
examples are cases
involving sensitive personal health information. That is often a consideration
in cases under the Health and
Disability Commissioner Act, but not exclusively
so. So, for example, in the Privacy Act context orders were made to protect the
confidentiality of personal health information in – to give just two
examples - SBD v FM (supra) and CD v Hawkes Bay District Health
Board (supra). Orders were made in CBN v McKenzie Associates
(supra) to protect information that concerned proceedings in the Family Court,
and the interests of a child. Orders were made in
EFG v Police (supra)
at least in part because that was considered to be necessary to give effect to
name suppression orders that had earlier been
made in the High Court.
|
| [90] | We do not accept the
criticism implicit in the Director’s submissions in this case; namely that
the Tribunal does not take the
initiative and raise the prospect of name
suppression orders when that seems to be appropriate, even if the litigants do
not. It
is probably true to say that when all parties are represented by
lawyers then the Tribunal is more likely to leave it to them to
raise the issue,
but where a litigant is not represented then usually counsel for the Privacy
Commissioner, or the Tribunal, will
raise the issue if thought appropriate: see,
for example, CBN v McKenzie Associates (supra) and QKB & NSN v
Commissioner of Police (supra). |
| [91] | Experience shows that, of
all the Tribunal’s separate jurisdictions, name suppression is perhaps
least often raised as an issue
in cases under the Privacy Act. We suggest that
is because it is seldom a real concern, notwithstanding that the cases come
under
the ‘Privacy’ Act. We will return to the point below, but we
share Mr Martin’s assessment that, notwithstanding
that cases come under
the ‘Privacy’ Act, most do not involve ‘private’ facts.
We refer, to give one example
only, to the litigation in Henderson v IRD
(see HRRT Decisions 18/03, 27/04 and 42/04, 18 June 2003, 10 June 2004 and 30
August 2004 respectively). Certainly the claim came
under the Privacy Act, but
it could not seriously have been suggested that any name suppression orders
might have been appropriate.
Indeed, of the 60 or so decisions issued by the
Tribunal under the Privacy Act in the four year period from 1 January 2003 to 31
December 2006, the question of name suppression has been raised in about 8 of
them: see the decisions listed at para [86] above.
Furthermore, given the way
in which applications have been made, as it happens orders have been made in all
cases in which they
were applied for or raised for consideration. (The precise
numbers may be debatable since, for example, some cases have involved
more than
one decision. We also recognise there will be a few decisions in which, in
retrospect, name suppression might have been
considered but was not. But even
so, reference to the facts of the decided cases and the figures we have given,
tend to confirm
our sense that there is no fundamental underlying problem about
the way in which the Tribunal has dealt with name suppression in
Privacy Act
cases in the past). |
| [92] | It is important to note
that in the vast majority of Privacy Act cases since 2003 the Privacy
Commissioner has appeared. This present
issue about the Tribunal’s
approach to name suppression generally is not one that the Privacy Commissioner
has raised with
the Tribunal in the past. Nor is there anything in the
commentaries we are aware of to suggest that there is a broad issue of practice
that needs to be addressed in the context of cases under the Privacy Act.
|
| [93] | We add that the argument
for what would in effect be a presumption in favour of anonymity in Privacy Act
cases (at least for complainants)
was put at a conceptual rather than practical
level. We were not referred to particular decisions in the past in respect of
which
it was submitted that an injustice had been done because of the
Tribunal’s approach to name suppression, or its failure to
anonymise names
and other details in any given situation. |
| [94] | The argument that cases
under the Privacy Act should be dealt with ‘privately’ (in the sense
of ‘privately and confidentially’)
has some superficial attraction
because the word ‘privacy’ derives from the word
‘private’. But the Privacy
Act deals with much more than
‘privacy’, in the sense of ‘keeping things private and
confidential’. Of course
there are many aspects of the Act that restrict
disclosures of personal information, and protect against improper use of
personal
information by agencies. Even so, we note that in describing the
essential aim of the legislation, the learned author of Butterworth’s
Privacy Law and Practice puts emphasis on the effect of the legislation
for the agencies subject to it: |
"The legislation is very much aimed at the behaviour modification of agencies
that hold information about individuals. Accordingly,
a significant portion of
the Act is structured around the Information Privacy Principles, which establish
norms of conduct in relation
to the collection, handling, and use of personal
information. Compliance with these principles is assisted by the rights granted
to individuals to have access to information and to seek correction of it."
| [95] | The long title to the Act
also makes it clear that it is intended to do a great deal more than simply
assist individuals to keep personal
information ‘private and
confidential’. Mr Martin referred to principles 6, 7 and 8 to illustrate
the point. These
are first and foremost obligations of information management.
We agree with Mr Martin that the argument for the Director in this
respect
conflates ‘personal information’ with ‘privacy’ (in the
‘private and confidential’ sense).
But, as reference to the facts
of the cases that the Tribunal has dealt with over the years demonstrates,
comparatively few matters
that come to the Tribunal under the Privacy Act
involve facts that can be regarded as being of a ‘private and
confidential’
kind. |
| [96] | We conclude this part of
the discussion with the obvious point that, all other things aside, the first
proposition that is articulated
by s.107 of the Human Rights Act is that the
Tribunal’s hearings are to be in public. The rule is of such general
application
that s.107(2) goes on to provide what might otherwise have been
taken for granted, namely that the Tribunal is entitled to deliberate
in
private. On any view the discretion in s.107(3) is a departure from a general
rule of openness. For that reason alone, we are
unable to accept that an
outcome in which anonymity is taken as a presumed starting point for any given
class of litigants (such
as complainants in Privacy Act cases) could be
appropriate. |
| [97] | We have not been persuaded
that there is any sufficient practical issue about the way in which orders are
being made (or are not being
made) under s.107(3)(b) of the Human Rights Act in
the context of cases under the Privacy Act to justify the imposition, by way of
a decision issued in this case, of anything like the sort of automatic
anonymisation process that Mr Stevens has suggested. We have
not overlooked his
submission than in other jurisdictions such as the Refugee Status Appeals
Authority, Residence Review Board and
Removal Review Authority that kind of
practice is used, or that it appears that the Administrative Decisions Tribunal
of New South
Wales now regularly anonymises the names of plaintiffs. The
reality is that practice in New Zealand in respect of Privacy Act cases
has been
as it is since the Privacy Act was passed in 1993. In our view the kind of
change that we are asked to introduce is not
one that ought to be introduced
without debate at a policy level. The debate should include all those who have
a proper interest
– such as the Privacy Commissioner and the Health and
Disability Commissioner, amongst others. In this respect we stand by
what the
Tribunal had to say on the subject in BNK v Trainor (supra, at para
[39]). In the meantime, we decline to make the changes to Tribunal practice
that Mr Stevens has urged upon us. |
| [98] | This brings us to the
second significant question raised by the Director’s argument, namely
whether the Tribunal’s approach
to the interpretation of s.107(3(b) of the
Human Rights Act in dealing with cases under the Privacy has been
wrong. |
| [99] | We find it convenient to
identify and then discuss each of the essential elements of the argument in
turn: |
| [a] | Mr Stevens began by drawing
a distinction between cases that are decided in the context of an explicit
statutory discretion (such
as s.107(3)(b) of the Human Rights Act) and those
that have been dealt with in common law courts exercising an inherent power
(see,
e.g., Scott v Scott [1913] AC 417). In the latter case, he
submits, the decisions speak of name suppression being appropriate where it is
‘necessary’ in the interests of justice. But s.107(3) only
requires that the Tribunal must be " satisfied that it is desirable ..."
to order name suppression. This is argued to be a deliberate legislative
indication that a lower threshold has been set, and one
to be expected given
that the Tribunal is set up to deal with a range of human rights issues
including cases of sexual harassment
and privacy. Mr Stevens also argued that
the lower threshold reflects the concern that complainants would be reluctant to
enter
the doors of the Tribunal if they thought that to do so meant appearing in
a potential spotlight of publicity. |
We have some reservations as to whether any difference between
s.107(3) and the test in older common law cases justifies a decision
that the
Tribunal should adopt a low threshold for the making of name suppression orders.
More importantly, we consider that anything
that might have been inferred from
any such differences is over-shadowed by the enactment of the New Zealand Bill
of Rights Act 1990
(‘NZBORA’), and the way in which the principles
of open justice and freedom of speech have been discussed in cases like
R v
Liddell, Lewis v Wilson & Horton and Re Victim X. And as
for the concern that if name suppression is not readily given then litigants
might fear to file proceedings, we can only
say that it is not something that
appears to be borne out by experience. Of course we accept that as the Tribunal
we may not be
as well placed as the Privacy Commissioner or the Director of
Human Rights Proceedings to assess the practicalities. If there have
been
actual litigants who have decided not to pursue litigation in the Tribunal as a
direct consequence of the Tribunal’s approach
to name suppression, then of
course the Tribunal will not be aware of that. But as we have said, this part
of the argument was put
at a conceptual level. If there is any empirical data
to support the concern raised by the Director, then it has not been presented
to
us.
| [b] | Mr Stevens then
referred to s.14 of NZBORA, which provides that "Everyone has the right to
freedom of expression, including the freedom to seek, receive, and impart
information and opinions of any
kind in any form". He has noted that the
right is subject only to such reasonable limits as can be justified in a free
and democratic society (s.5),
and that whenever an Act can be given a meaning
that is consistent with the rights and freedoms of NZBORA then that meaning is
to
be preferred to all others (s.6). His submission argues that s.107 simply
cannot be given a meaning that is consistent with an unlimited
version of the
rights and freedoms contained in NZBORA: "It must be taken that Parliament
has itself decided that the discretionary powers given to the Tribunal in s.107,
including the guiding
words that the section contains as to the use of those
powers, constitute a reasonable limit upon the freedom of expression that
is
demonstrably justified in a free and democratic
society." |
We do not accept this argument, if it is taken to mean that s.107 relieves
the Tribunal of any real obligation to be concerned about
issues such as freedom
of speech and open reporting. To do so would be at odds with the clear
legislative direction in s.6 of NZBORA,
and all of the recent New Zealand Court
of Appeal decisions that have drawn attention to the importance of valuing free
speech and
open reporting when assessing whether or not publication of any given
information ought to be prohibited in any particular case.
Nor do we think that
is difficult to interpret s.107 in a way that is consistent with NZBORA.
Section 107(3) is not an all encompassing
power to prohibit the publication of
anything the Tribunal chooses. It is a discretion that is given after the
primary statutory
proposition, namely that Tribunal hearings will be held in
public (s.107(1)). It falls to be exercised against a background of the
rights
and freedoms expressed in NZBORA. Of course there are cases in which private
interests outweigh these concerns, and suppression
is appropriate. But the
effect of NZBORA is to ensure that the competing interests of privacy and
publicity must always be weighed
up – that, with respect, is the essential
point that was being made by the Court of Appeal in R v Liddell (supra,
at pp. 546 – 547 per Cooke, J).
| [c] | The next part
of Mr Steven’s argument focussed on the wording of the provisions of the
Criminal Justice Act 1985 which provide
for the possibility of suppression of
evidence in criminal proceedings. In particular, reference is made to the
wording of s.138(2)
of that Act which confers power to prohibit publication of
information if the court is ‘ ... of the opinion that the interests of
justice ...’ so require. Those words are contrasted with s.107(3) of
the Human Rights Act (if the Tribunal ‘ ... is satisfied that it is
desirable ...’). Mr Stevens contends that the differences in the
relevant wording are material; and that the Tribunal has a less fettered
discretion than do the Courts under s.138(2) of the Criminal Justice Act.
|
We accept that the subject matter of the individual cases that come before
the Tribunal may distinguish them from the kinds of cases
to which s.138(2) of
the Criminal Justice Act applies. But we are not persuaded that the standard
for exercise of the discretion
in s.107(3) of the Human Rights Act is so very
different from that in s138(2) of the Criminal Justice Act as to justify a
conclusion
that discussion of the principles applied under the Criminal Justice
Act is of significantly diminished relevance under the Human
Rights Act. After
all, in the end the Tribunal’s objective - just as much as that of any
Court considering s.138(2) - is arrive
to at an outcome that is in the interests
of justice. In our view the broad approach identified by the Court of Appeal in
R v Liddell applies to the exercise of the s.107(3) discretion with equal
force, and notwithstanding the difference in wording between the two
provisions.
| [d] | Mr Stevens placed some
reliance on the decision of Heath, J in Fardell v Attorney-General
(Unreported, High Court, Auckland, CIV 2006-404-3638, 1 November 2006). The
case concerned the power of a Coroner acting under s.25
of the Coroners Act 1988
to prohibit the publication of any evidence given at an inquest if satisfied
that it is " ... in the interests of justice, decency, or public order to do
so". The High Court held that the Coroner had erred in the exercise of the
discretion because he had in effect added a gloss to the wording
of the section,
to the effect that the power to suppress ought only to be exercised sparingly
because of the open justice principle
and s.14 of NZBORA. This
‘gloss’ failed to take proper account of the differences between the
Court and the jurisdiction
of the coroners. The High Court held that
publication of certain information ought be prohibited, notwithstanding that the
Coroner
had refused to order its suppression. |
It is important to recognise what was at issue. There was no suggestion that
all of the evidence should be suppressed, or even that
evidence that named or
identified people ought not to be published. Indeed, having considered the
relevant legislation, Heath, J
decided:
"In this case, the evidence put before the Coroner included a personal
interview with Mrs Fardell (inquiring into personal issues,
including the nature
of her relationship with her husband), information concerning the financial
affairs of the late Mr Fardell,
information concerning his medical history and
privileged information of a legal nature. While that evidence was relevant to
the
proper conduct of the inquest, there is no reason for it to be made public
knowledge. The privacy interests of the deceased and
his family outweigh the
open justice and s.14 [NZBORA] principles in that regard and justify a
limited suppression order. As there is no legitimate public interest in
imparting that information,
I intend to suppress it from
publication".
With respect, we see the decision in Fardell as having been an
orthodox application of the relevant principles, in circumstances in which the
privacy of the late Mr Fardell and
his family clearly outweighed any public
interest in full reporting (at least to the extent to which suppression orders
were made).
The decision does draw attention to the importance of carrying out
the balancing exercise having regard to the particular kind of
case that is
involved. We also accept that it would be wrong to approach the balancing
exercise under the Privacy Act on the basis
that the discretion ought to be
exercised only ‘sparingly’. The assessment of the competing
concerns (on the one hand,
the principles of open justice and s.14 NZBORA and,
on the other, the particular interests of the individual litigants) must be
carried
out to its conclusion. If the result is that suppression orders are
indicated, then they should be made without further hesitation.
But we think it
can fairly be said that that has been the Tribunal’s approach to date. As
already noted, in all of the recent
decisions under the Privacy Act in which
such orders have been applied for or raised for consideration, the Tribunal has
accepted
the concerns and imposed restrictions to meet them. It should not be
supposed from the fact that such orders are seldom made in
privacy cases in the
Tribunal, that the Tribunal is exercising its jurisdiction under s.107(3)
‘sparingly’. For completeness
we add that, insofar as the High
Court placed emphasis on a distinction between the adjudicative processes of a
Court and the inquisitorial
processes of a Coroner, the Tribunal’s
functions fall very much closer to those of the Courts than the Coroner.
| [e] | Mr Stevens drew
support for his argument from the approach taken by the Courts when dealing with
cases involving blackmail, trade
secrets and private correspondence. Again, the
cases pre-date NZBORA, but in any event we think that - at least in respect of
blackmail
and trade secret cases, and cases in which commercial and proprietary
interests in information are at stake – the considerations
have a
different dimension than those that are relevant to our exercise of the
discretion in s.107(3)(b) of the Human Rights Act
in this case. That is not to
say that orders prohibiting publication of evidence will never be appropriate in
cases under the Privacy
Act which involve evidence about blackmail, trade
secrets or other commercial or proprietary interests in information, but we
suspect
that the issues in those situations probably come closer to the concerns
that were discussed in Dijkstra v Police (HRRT Decision 16/06; 25 May
2006). As for private coprrespondence, of course one can concieve of cases in
which it would be appropriate
to restrict publication of that kind of evidence.
The decision in Fardell v Attorney-General (supra) shows an example. But
even so, we do not see anything in the decisions that we were referred to which
seems to us to justify
a conclusion that Mr Steven’s proposed test for
publication or non-publication of evidence (see para [80] above) should be
adopted in place of the approach that the Tribunal has taken to date.
|
| [100] | We have not
been persuaded that the approach to the exercise of the discretion in s.107(3)
of the Human Rights Act 1993 as articulated
in BNK v Trainor (supra) has
been wrong, or that a materially different approach should be adopted in respect
of cases brought under the Privacy Act
just because they are brought under the
Privacy Act. |
| [101] | We therefore turn to
consider the factors at work in this case: what are the considerations that
might justify a conclusion that the
complainant’s anonymity ought to be
protected notwithstanding the principle of open
justice? |
| [102] | As already noted, the
argument in support of the orders that were sought was put at a conceptual
level. Mr Stevens submitted that
if the complainant were to be identified then
that would be ‘likely’ to cause her ‘enormous
distress’, and that (had she known that publicity might follow the
proceedings) it was ‘unlikely’ she would have agreed to give
evidence at all. But the complainant did not give evidence to that effect
either at the hearing, or
by way of affidavit filed in relation to the
application for name suppression. The need for evidence as to relevant facts in
this
situation has been noted in the BNK v Trainor decision (supra, at
para [63] (d); see also Clark v Attorney-General (2004) 17 PRNZ 161 at
para [12]). |
| [103] | There is a temptation to
make an order in the terms applied for simply as a ‘line of least
resistance’ kind of approach
to the matter. The defendant does not, after
all, go so far as to oppose the application. But any such inclination must give
way
to a proper and principled decision on the facts of the particular case.
And in making the assessment, it has to be recognised that
some level of
personal embarrassment or discomfort to parties and witnesses is to be endured:
see, for example, Clark v Attorney-General (2004) 17 PRNZ 161 in which
the following observation by Lord Atkinson in Scott v Scott (supra) was
noted: |
"The hearing of a case in public may be, and often is, no doubt, painful,
humiliating, or deterrent both to parties and witnesses,
and in many cases
especially those of a criminal nature, the details may be so indecent as to tend
to injure public morals, but all
this is tolerated and endured, because it is
felt that in public trial is to be found, on the whole, the best security for
the pure,
impartial, and efficient administration of justice, the best means of
winning for it public confidence and support".
And later, with reference to Lord Woolf in R v Legal Aid
Board, ex p Kaim Todner [1998] EWCA Civ 958; [1999] QB 966:
"... It is not unreasonable to regard the person who initiates the
proceedings as having accepted the normal incidence of the public
nature of
court proceedings. If you are a defendant you may have an interest equal to
that of the plaintiff in the outcome of proceedings
but you have not chosen to
initiate court proceedings which are normally conducted in public. A witness
who has no interest in the
proceedings has the strongest claim to be protected
by the court if he or she will be prejudiced by publicity, since the courts and
parties may depend on their co-operation. In general, however, parties and
witnesses have to accept the embarrassment and damage
to their reputation and
the possible consequential loss which can be inherent in being involved in
litigation. The protection to
which they are entitled is normally provided by a
judgment delivered in public which will refute unfounded allegations. Any other
approach would result in wholly unacceptable inroads on the general rule."
(p. 978; and as quoted at p 165 of the decision in Clark v
Attorney-General)
(We note that, although in this case
the Director of Human Rights Proceedings is the plaintiff and the complainant is
strictly speaking
only a witness, she is hardly disinterested. She will have
the benefit of the award of damages (see s.88(2) of the Privacy Act),
and we
assume that if she had refused or failed to give evidence then the hearing would
not have proceeded (c/f EF v Toon (supra)). Her position is not like
that of an arm’s length observer of events who is asked to give
evidence).
| [104] | Notwithstanding the
absence of evidence, we can accept that the complainant would rather not be
identified. Nonetheless we are unable
to find any sufficient basis in the
evidence to satisfy us that restrictions on the reporting of the proceedings are
justified.
The facts here are that the complainant was charged with an offence,
she admitted the charge, she appeared in Court, and she underwent
the diversion
scheme. There is nothing inherently private about any of those things. There
was no evidence that any of those details,
or the identity of the complainant,
were the subject of any suppression orders made by the Court when it dealt with
her case in 2003.
There was no suggestion that name suppression might have been
available to her if it had been applied for. Nor was it suggested
that
participation in the diversion scheme might somehow have given rise to an
expectation of anonymity. |
| [105] | For these reasons we
decline the Director’s application for orders that publication of the name
and identifying details of the
complainant be prohibited.
|
| [106] | At the same time, we
recognise that the Director may wish to take the matter further, and that his
right of appeal must be protected
in a way that is effective. We therefore
direct that, for a period of 30 days after the date on which this decision is
issued, it
is to be made available to the parties to the litigation only. If an
appeal is commenced within that period in respect of this part
of our decision,
then that status quo is to be maintained until the High Court has dealt
with the issue. But if no such appeal has been commenced by the close of
business
on the 30th day after this decsion is issued to the parties,
then the decision may be circulated in the usual way.
|
| [107] | For the avoidance of any
doubt, we note that the protection offered by this direction is limited. That
is because neither the Tribunal
nor the Chairperson of the Tribunal have made
any interim orders to prevent publication of the complainant’s name or
identifying
details. Thus if an appeal is commenced, and if the restriction on
circulation that is encapsulated in the paragraph above is not
thought to be an
adequate safeguard, it will be for the plaintiff to take the matter up in the
High Court to seek any other interim
measures of
protection. |
Costs
| [108] | Costs are reserved, and
will be dealt with according to the following
timetable: |
| [a] | Any application for costs to
be filed and served (along with any supporting materials) within 28 days of the
date on which this decision
is issued to the
parties; |
| [b] | Any response is
to be filed and served within a further 21
days; |
| [c] | The Tribunal will then deal
with the issue of costs on the basis of the materials and memoranda that will by
then have been filed,
and (unless either party indicates otherwise) without any
further viva voce hearing; |
| [d] | If any amendment to this
timetable is sought by the parties, and is thought by the Chairperson of the
Tribunal to be justified, then
we leave it to the Chairperson of the Tribunal to
make such changes to the timetable as may seem to him to be
appropriate. |
_______________ _______________ _______________
Mr
R D C Hindle Dr A D Trlin Mr G J A Kerr QSO,
JP
Chairperson Member Member
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