Privacy Law and Policy Reporter
This article focuses on the issues associated with public registers and the interaction by the Privacy Act 1993 (the Act) with other legislation. It is based primarily on Wellington City Council’s (WCC) submissions to the Act Review and discussions with other local authorities and Offices of the Ombudsmen and Privacy Commissioner over the past two years.
The current situation arises due to the mismatch between the legislation which established the registers, the official information Acts and the Act, and the interpretation of the various legislation. The most visible result of the current situation for local authorities is the use of personal information from public registers for commercial purposes, particularly direct marketing. While this occurred prior to the enactment of the Act, it is the increasing number of requests for the information, the increasing number of complaints relating to the use of the information and the very existence and intent of the Act which has highlighted the issues to the public and local authorities.
WCC’s submissions strongly endorsed the establishment of some key elements for all public registers:
We believe that the existence of these key elements will provide the search references for the public register, clarify what information was made available and for what purposes. We, and other local authorities, used the Dog Control Act 1996 as an example of public register legislation which has addressed the issues comprehensively.
With the exception of the local electoral roll, where the Act requires registration, inclusion on the public registers results from a personal decision to buy a property, to build or renovate, or to own a dog. WCC believes that information collected for these purposes should not be released for unrelated purposes.
The information required by the local authority to manage the functions related to the public registers is directed by legislation. Generally it is more than is required from a ‘public register perspective’. For example, should the rates roll, which is available for public inspection, include the name of the property owner and their postal address? The rates apply to the property, not the owner. The ‘state of the account’ is part of the rate record, but should this mean that the arrears are automatically publicly available? Clearly, there are valid purposes for which the information should be released — intention to purchase the property or undertake building work which impacts on the property. The current situation does not allow for discretion on what information is released.
We endorse recommendations 84 and 85 relating to search references and the establishment of the purpose of the public registers. However, we believe it should extend to specifying the content of the public register and the purposes for which information can be released.
It is essential that this issue is addressed as legislation is created or revised. However, the legislation drafting process does not guarantee a solution. The officers involved in the revision of the Dog Control Act had ongoing liaison with the Office of the Privacy Commissioner during the drafting process.
Unfortunately there was no liaison with the Office of the Privacy Commissioner on the Rating Valuations Bill. The result is an Act which does not address the public register issues sufficiently — missing an opportunity to avoid a repeat of the sale of a valuation roll to an Australian marketing company. The Act does provide for a regulation to be created limiting or prohibiting bulk provision when outside the purpose of the Rating Valuations Act or the Rating Powers Act. Unfortunately, neither of these Acts have a clear purpose statement — so the issue is still left to interpretation. The Rating Valuation Rules released July 1998 have specified the content of the public register — but the rules are subject to the Local Government Official Information and Meetings Act 1987 (LGOIMA), and Official Information Act 1982, which effectively override the Privacy Act.
We support recommendation 86 which provides for a general regulation making power for the Privacy Commissioner to allow for purposes to be specified. However, we believe it should be extended to allow for the establishment of the key elements where these do not exist. This process should be in liaison with the relevant agencies and open to public consultation.
We do not believe that the principle relating to the electronic transmission of the public register is consistent with the purpose of a public register or the intent of the Act. The legislation which establish public registers generally give the ‘right to inspect’ the public register. They do not provide the ‘right to search’. While we agree that any transmission should only be to the NZ public we have concerns about the intent of the principle. We do not believe the proposed amendment sufficiently addresses the issues raised by electronic transmission. The use of the Internet to provide public access to the registers can proceed once the issues around the key elements are resolved for each public register.
If this principle stays, with or without the proposed amendment, without the key elements mentioned above or the inclusion of the proposed principle on bulk disclosure of information, the review of the Act will not have addressed one of the key issues for local authorities. It is essential that the process for reviewing the recommendations consider the impact of each of the recommendations on other recommendations. While the Privacy Commissioner does not want to suggest an ‘all or nothing’ approach, in some cases the individual recommendations cannot stand alone
An issue for many local authorities when releasing bulk public register information in the current environment is the knowledge that the information collected under legislation, and in some cases requiring payment by the customer, is being used for commercial purposes by the requestor. Local authorities are covered by the 1992 Department of Justice charging guidelines for official information. These require that only ‘reasonable charges’ incurred in the provision of information can be made, which results in commercially valuable information being released for minimal cost. These guidelines are currently under review by the Ministry of Justice. However, if the review of the Act is successful in terms of addressing the bulk release of personal information, the charging issue may diminish as there is likely to be less commercial viability in bulk lists which do not contain personal information. Nevertheless, local authorities must raise their concerns with the Ministry of Justice in the review of the current charging guidelines.
We support recommendation 91 for a new principle relating to the bulk provision of information. We believe that this will address one of the major concerns for local authorities. There is likely to be a debate over the definition of ‘bulk’ or ‘volume’. Requestors could request the maximum information for each request and request more frequently to obtain the same information.
However, with the establishment of the key elements of purpose and content of the public register, and purposes for which information can be released, and addressing the interplay issues with the official information acts, this principle provides a good basis for addressing the issues.
While supporting the intent of recommendation 96, the process must require that consultation is undertaken with the Office of the Privacy Commissioner prior to the proposed legislation being released for public consultation. This will provide an opportunity for the public to make submissions on the privacy clauses as part of the whole Bill, rather than having them included through the select committee process along with other public submissions.
The proposed process in recommen-dation 96 must include, and give priority to, a review of the existing public registers. It is not appropriate to wait until the acts are reviewed as this may not occur for some time. A large number of requests for local authorities relate to public register established under the Building Act 1991 — a recent Act relative to others which establish public registers. The Rating Powers Act 1988 has been under review for a number of years and, hopefully, will be introduced and passed before Parliament rises for the next election.
WCC supports recommendations 98 and 99 for a new public register privacy principle to allow for suppression of personal details where necessary for reasons of personal safety and to institute a generic regime which includes the current protection orders application for direction regime under the Domestic Violence Act.
A recent provisional opinion from the Ombudsman has highlighted that the ‘confidentiality for security reasons’ provision in s 27(3) of the Building Act 1991 is itself subject to the Local Government Official Information & Meetings Act 1987. It is essential that the interplay between the official information acts and the Act is clarified to avoid any confusion in the future.
WCC strongly endorses recommendation 100. There can be no justification for using legislation which has clearly stated purposes relating to ‘... participation in the actions and decisions of local authorities ... to promote the accountability of local authority members and officers ... and the protection of personal privacy’ (s 4 of LGOIMA) to support the release of bulk information required by legislation for commercial purposes.
WCC supports the premise of the ‘right to inspect’ and to have access to official information held by local authorities unless there is a valid withholding reason to prevent the release. WCC does not support the bulk release of public register information required by legislation from our customers for unrelated purposes.
The Office of the Privacy Commissioner must be congratulated on the work undertaken in this review. It is clear from the public register chapter that extensive analysis and consultation has been undertaken. The concerns we raised in our submissions have been heard and, generally, addressed. The issues have been summarised clearly and provide valuable background.
The next steps are the critical ones. The process from here must ensure that the intent of the review is incorporated into a Bill which is released for public submission. There are many recommen-dations within the public register chapter which require other proposed changes to achieve the goals desired.
Wellington City Council looks forward to being part of the public submission process for the next stages.
Geraldine Murphy is Information Management Team Leader, and Privacy Officer, with Wellington City Council.