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287 THE LAW COMMISSION was asked in its terms of reference to consider whether three reasons for withholding official information in s 18(d)–(f) of the Official Information Act should apply to requests for personal information under s 24.
288 Since 1993, requests for personal information by natural persons about themselves have been considered under the Privacy Act 1993.159 Part IV of the Official Information Act, and the equivalent provisions of the Local Government Official Information and Meetings Act, now apply only in respect of requests by bodies corporate for personal information about themselves, where those bodies are incorporated in New Zealand or have a place of business here. These bodies still have a right of access to personal information about themselves which is readily retrievable: Official Information Act s 24(1). Requests for personal information about persons other than the requester are covered by Part II of the Official Information Act.
289 Within the broader class of official information, the Official Information Act creates a category of “personal information”, defined in s 2 as “any official information held about an identifiable person”. Under Part IV of the Act as it was originally drafted, a “person” had a right of access to personal information about that person: ss 2(1) and 24. This reflected the purpose stated in s 4(b) of providing for “proper access by each person to official information relating to that person”. The right of access to personal information contrasted with the procedures for seeking general official information160 under ss 12 to 19 in three ways:
290 The reasons for withholding in s 27 were also different, generally to the advantage of the individual requesting personal information.
291 Requesters’ rights of access to personal information about themselves under the Privacy Act and Part IV of the Official Information Act are subject to limits.
292 The first limit is that the information must be held in such a way that it can readily be retrieved.161 It is here that a distinction arises between the two regimes. Natural persons can now request information about themselves only under the Privacy Act. Other persons, by contrast, can continue to seek it under the Official Information Act. If personal information is not held in a readily retrievable way, and therefore is not available under the right of access in the Privacy Act, it can still be sought as general official information under the Official Information Act.162 In such cases the apparently narrower ground in the Official Information Act s 18(e) (that the document alleged to contain the information requested does not exist or cannot be found) could become relevant.163 The test in s 18(e) is narrower than the “readily retrievable” test in the Privacy Act, since information which is not readily retrievable may nevertheless exist and may be able to be found ((1984) 5 OCN 124, 126, and (1987) 8 OCN 71).
293 The second relevant limit on the right of access is provided by the savings provisions of the two Acts. The Official Information Act is not to derogate from:
– impose prohibitions or restrictions in relation to the availability of official information, or
– regulate the manner in which official information may be obtained or made available.164
294 The Privacy Act differs in its wording. Section 7 provides that nothing in principle 6 (which deals with access to personal information about the requester) or principle 11 (which limits disclosure of personal information) derogates from any provision contained in any other enactment authorising or requiring personal information about the requester to be made available.
295 These provisions are complex in their detail and possible operation. That is even more the case for official information in general when they are read with s 18(c)(i) of the Official Information Act, which enables information to be withheld if making it available would be contrary to the provisions of an enactment. The point to note in the present context is that some of the many enactments saved by s 52(3)(a)–(b) of the Official Information Act and s 7 of the Privacy Act will provide for public access, including access by the particular person, to personal information about that person. Thus, for example, if a particular enactment regulates access to personal information by individuals, and an individual seeks access under the Privacy Act or the Official Information Act, then the issue of access will be determined in accordance with the particular enactment.
296 The Law Commission is aware that s 7 of the Privacy Act is likely to be considered by the Privacy Commissioner in the forthcoming review of that Act. We make no further comment on this aspect here, but note its general relevance to the ensuing discussion.
297 The third limit on requesters’ rights of access to information about themselves is the withholding provisions: s 27 of the Official Information Act and ss 27–29 and 32 of the Privacy Act. They repeat, in some respects, the reasons for withholding general official information under ss 6–9 and 18(h) of the Official Information Act. There are, however, some differences between the sets of reasons, which reflect the differences between personal information and the full range of official information.165
298 In particular, the reasons for not releasing personal information do not include three reasons for refusing requests set out in s 18(d)–(f) of the Official Information Act:
(d) That the document requested is or will soon be publicly available;
(e) That the document alleged to contain the information requested does not exist or cannot be found;
(f) That the information requested cannot be made available without substantial collation or research.
299 The issue raised in our terms of reference is whether s 18(d)–(f) listed above should apply to requests for personal information. The Privacy Act already contains an equivalent to s 18(e),166 but all three questions arise under the Official Information Act in respect of requests by bodies corporate for personal information about themselves.
300 Section 18(d) appears to have been designed specifically with official information of the broader type in mind, and not personal information. The provision acts as
a protection against requests for the content of a speech not yet delivered or a press release not yet made. It is not the intention to impair the practice of imposing a “time embargo” on material. (Towards Open Government: Supplementary Report, 73)
301 One reason for not applying s 18(d) to requests for personal information is that persons would effectively lose the right to propose corrections to the information at the critical time – before the information is made public.167 The appropriate exercise of the right to seek correction can also help the agency holding the information, for instance in improving the quality of its information and preventing it being embarrassed by releasing inaccurate information about a person.
302 The Law Commission has not been made aware of any practical problems in this area.
303 We have already noted (para 292) that:
304 Accordingly, the added application of s 18(e) to personal information requests would make no difference. The real question may be whether the extra requirement in respect of such requests can be justified. We consider this a question better addressed following the review of the Privacy Act.
305 It appears to the Law Commission that s 18(f) would not create an additional hurdle for requests for personal information. If the information cannot be made available “without substantial collation or research”, as s 18(f) allows, it cannot be “readily retrieved”. The point has also been made to us that the “readily retrieved” requirement could be used by an agency to limit its obligations under the Act.
306 The Law Commission considers that extending s 18(e) and (f) to personal information would make no practical difference to requests under Part IV of the Official Information Act. Adding the substantial collation reason to s 29(2) of the Privacy Act would be similarly pointless. The statutory requirement that personal information can be “readily retrieved” – already contained in the Official Information Act and the Privacy Act – provides more of a hurdle than either s 18(e) or (f).
307 Applying s 18(d) to requests for personal information may make an occasional difference, but that would risk undermining the benefits of the right to correction and so would be inappropriate.
308 Moreover, in general individuals seeking information about themselves under the Privacy Act rightly have greater access to information than those making general requests under the Official Information Act. A strong reason would be needed to move the treatment of personal information closer to that of official information in general.
309 The Law Commission recommends that the three reasons in s 18(d)–(f) should not be applied to personal information.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R40/R40-8.html