Privacy Law and Policy Reporter
 3 NZLR 80
(New Zealand Court of Appeal)
Information Privacy Principles — collection — use — ‘personal information’ — interests that compete with privacy
The first Court of Appeal decision in a Privacy Act 1993 (NZ) matter was made by a full bench of five judges on 17 July 2000 in Harder v Proceedings Commissioner. The Court was split three to two in favour of allowing the appeal and quashing the decisions in the forums below. The difference between the majority and minority judgments stemmed more from technical points relating to jurisdiction and procedure than any fundamental difference in principle.
The complainant in this matter (Ms C) was the former partner of the client represented by the appellant barrister, Mr Harder. The barrister was defending his client for breach of a non-violence order. The complaint concerned the barrister taping telephone conversations between himself and Ms C, who had contacted him before the hearing of the charge with an offer to resolve the matter. The barrister agreed to seek instructions on the offer, and an arrangement was made for Ms C to ring back (as she did not wish to disclose her unlisted number). When Ms C telephoned the second time as arranged, she was informed that her offer was unacceptable. The barrister then asked her a series of questions. Both telephone conversations were tape recorded, but Ms C was unaware of this. Shortly before the court hearing, Ms C was told of the existence of the tapes, but she was not concerned about their content. At the hearing, however, the barrister held up the tapes and told the court that he would be requiring Ms C to give evidence under oath, implying that the tapes would show that she had acted improperly. The woman was sitting in the public gallery of the court. She claimed that the barrister’s actions embarrassed and humiliated her.
The Privacy Commissioner formed the view that the barrister had breached Information Privacy Principle (IPP) 3 (‘Collection of information from subject’) because he failed to notify Ms C that he was tape recording their telephone conversations, his reasons for taping them, and the persons to whom he intended to disclose them. The Privacy Commissioner also determined that the barrister was in breach of IPP 4 (‘Manner of collection of personal information’) because the manner in which the information was collected was unfair.
The Complaints Review Tribunal upheld Ms C’s complaint and ordered Mr Harder to pay damages of $7500 for the complainant’s humiliation and loss of dignity. Mr Harder appealed to the High Court, which upheld the Tribunal’s findings but reduced the level of damages to $2750 on the basis that the breaches fell in the lower end of the spectrum, and because the eventual use of the tapes in court could not be taken into account in awarding damages. The plaintiff’s claim had been based entirely on the collection of the information, and was not in respect to the actual use made of the tapes (IPP 10), because it was assumed that a barrister’s behaviour in court was subject only to the control of the presiding judge and the Law Society as a professional disciplinary body.
Mr Harder appealed the High Court’s decision to the Court of Appeal.
The majority of the Court of Appeal noted that neither the Tribunal nor the High Court considered whether the case involved ‘personal information’ at all. That issue was also not addressed by any of the points on appeal. As the case did not turn on the issue (since the Court of Appeal held that the Privacy Act 1988 (Cth) had not been breached), the proper scope of what constitutes ‘personal information’ remains open for deter-mination in another case. Never-theless, the Court made the following non-binding observations:
The Information Privacy Principles are all concerned with personal information. That concept is a central feature of the Act. An unqualified approach to what constitutes ‘information about an identifiable individual’ will lead readily to breaches of one or more of the Information Privacy Principles. It is a feature of the Act that there can be a breach of an information privacy principle, yet whether that breach becomes an interference with privacy in terms of s 66 is dependent on the opinion of the Commissioner or the Tribunal as to whether the action of the alleged contravener has had one or more of the results referred to in s 66(1)(b). The approach of the Commissioner and the Tribunal in the present case does not suggest that this provision has been viewed alongside the balancing provisions of s 14(a). They require the Commissioner, and implicitly others involved in the interpretation and administration of the Act, to have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way. Those concepts are thus relevant to the scope of the definition of personal information (para ).
The Court of Appeal questioned whether the information involved in this case — the settlement proposal put to Mr Harder on behalf of his client by the complainant (the first conversation) and her denial that she had certain items that were claimed by the client (the second conversation) — was personal infor-mation about the complainant. The Court of Appeal observed that:
The only way the first conversation could involve information about Ms C would be to say it constituted information about her attitude to the way the differences between herself and her former partner might be resolved. The same can be said of the second conversation. It seems strained to suggest that Ms C’s denial of possession of certain unspecified chattels is information about her for privacy purposes. It would be surprising if Parliament intended the Act to have such an unrestrained reach (para ).
The two dissenting judges, however, were not minded to take such a restrictive view concerning the scope of the concept of personal information.
The majority’s comments on the issue of what constitutes ‘personal information’ were surprising. The majority referred to an ‘unqualified’ or ‘unrestrained’ approach to the definition, yet failed to discuss the broad s 2 definition of ‘personal information’ (‘information about an identifiable individual’); the approach towards the concept which has developed over nearly the past two decades through the Ombudsmen’s and Privacy Commissioner’s case notes and practice; or overseas parallels in both national legislation and international instruments. Moreover, the reference to the balancing provision of s 14(a) of the Privacy Act as an apparent limitation on what does and does not constitute ‘personal information’ is surely mistaken, as is its ‘implicit’ application to the Complaints Review Tribunal when it expressly refers only to the Privacy Commissioner’s functions and powers, which are considerably different from those of the Tribunal. It may be that the majority confused ‘personal information’ with ‘private information’.
After considering the concept of ‘personal information’, the majority of the Court of Appeal analysed the substantive points on appeal in three stages: first, whether there had been a ‘collection’ in terms of the Privacy Act; second, if so, whether the collection breached IPP 3; and third, whether the collection breached IPP 4.
The majority found that the information provided by Ms C in the first telephone conversation was not ‘collected’ in terms of the Privacy Act, as it was unsolicited. Mr Harder was therefore in ‘receipt of unsolicited information’ in terms of the exception to the concept of ‘collect’ in s 2. The majority stated that:
The Tribunal’s acceptance of the submission that when he switched on the tape recorder Mr Harder changed from being a passive recipient of unsolicited information to an active recorder ‘and therefore collector’ of the information cannot stand scrutiny. The unsolicited nature of the information was not affected by the fact that it was recorded or the way it was recorded. It was therefore not relevantly collected (para ).
Therefore, where information is deliberately obtained though recording devices, but has not been solicited, the recorder’s intentions or actions in respect of the information cannot convert the gathering of information into a ‘collection’ of information in terms of the Privacy Act. Therefore, any controls over this area must be instituted through legislation that specifically addresses this issue.
The second telephone conversation, however, did involve a collection of information in terms of the Privacy Act, as it had been pre-arranged and the defendant asked questions about matters that concerned his client.
Having found that there was a collection of information in the second telephone conversation, the majority then turned to consider whether Mr Harder breached IPP 3. IPP 3 requires the collector of information to take reason-able steps in the circumstances to ensure that the individual concerned is aware of the matters listed in IPP 3(1)(a)-(g).
IPP 3(1)(a) required that Mr Harder should have made Ms C aware that he was collecting her personal information. The Court found that she was undoubtedly aware that there was a collection of information taking place. The Court noted that:
This paragraph is concerned with the fact of collection, not the means of doing so. Thus Ms C’s lack of awareness that Mr Harder was tape recording the information is not material to the present point. It is principle 4, not principle 3, which is concerned with the manner in which information is collected (para ).
Likewise, the Court found that IPP 3(1)(b) had not been breached. It was self-evident that Ms C was aware of the purpose for which the information was being collected, for it was being collected in connection with Mr Harder’s role in respect of his client, ‘in order to advise his client of Ms C’s answers to his questions’ (para ). This finding illustrates the elasticity of the notion of ‘purpose’ in the legislation. The majority’s conclusion on this point was one possible view of the purpose for the collection of information. Another view of the purpose here might have been in order to use the information against Ms C’s interests (in which case she could hardly have been expected to continue the conversation had she been informed of such a purpose). There is also the actual use of the information by the barrister, which was to embarrass Ms C. The Court failed to consider whether this use was encompassed in the original purpose.
The majority also found that there were no breaches of IPP 3(1)(c), which relates to information concerning the intended recipients of the information, or IPP 3(1)(d), which concerns Ms C’s awareness of the name and address of the agency that was collecting the information, since it was obvious that Mr Harder and his client were the intended recipients.
IPPs 3(1)(e) and (f) did not apply in the circumstances as the collection of information was not authorised or required under law, nor were there any consequences if the requested information was not provided.
The Court of Appeal found that the final requirement, IPP 3(1)(g), which required informing Ms C of her right of access to and correction of her personal information, ‘hardly [arose] with a tape recording’. The Court went on to remark:
As to access, we do not consider it was reasonable to expect Mr Harder to take any steps to advise Ms C she had certain rights of access to the tape recording, bearing in mind its forensic purpose and potential use. In any event nothing said by Ms C during the second conversation, when she denied possession of the various items, could possibly have led Mr Harder to take the view that he should inform Ms C she had rights of access to the tape, if indeed she did (para ).
With respect, the Court failed here to apply the appropriate legal test. The test in IPP 3(1) is not whether or not it would be reasonable to inform data subjects of their rights, but whether the agency has taken ‘such steps (if any) as are, in the circumstances, reasonable to ensure that the individual concerned is aware of’ their rights’. The issue should therefore have been:
In other words, what is required is that the individual concerned be aware of their rights. Agencies have a duty to take reasonable steps to ensure that individuals are aware of their rights. Principle 3(1) does not give agencies a discretion not to inform individuals of their rights at all.
In the result, the majority found that the appellant had not breached IPP 3, and commented:
He did not fail to take any step which, in the circumstances, was one which he should reasonably have taken in terms of the various aspects of the principle. Indeed the artificiality of suggesting that there was a reasonable step which he omitted to take in these particular circumstances, and in relation to this particular information, reinforces the very considerable doubt whether the information concerned was personal information within any sensible application of the Act (para ).
The majority next turned to the issue of whether Mr Harder had breached IPP 4, and found that he had not collected information in an unfair manner. The Court observed that the Tribunal had put emphasis on what it perceived as a power imbalance between the complainant and Mr Harder, so that the Tribunal formed the view that the barrister took advantage of her. The Court noted, however, that:
The Tribunal did not examine what the difference would have been from the privacy point of view between a comprehensive handwritten note and a tape recording of the conversations (para ).
The High Court, for its part, focused on the issue of proper professional standards, but the majority criticised this approach because it did not ‘recognise the context in which the present issue arises’ (para ). The majority commented that:
Collection of personal information must not be achieved by unfair means. The primary purpose of this provision is to prevent people from being induced by unfair means into supplying personal information which they would not otherwise have supplied. Ms C made no complaint about the contents of the recording (para ).
The majority also noted that it is not unlawful for a participant in a conversation to tape record it without the other party’s knowledge (R v A  1 NZLR 429), and that whether or not it is unfair to do so will depend on the circumstances (Talbot v Air New Zealand  2 ERNZ 356 (CA)).
In the result, the majority concluded that the appellant had not breached IPP 4:
It is not easy to see how Mr Harder’s conduct was in the circumstances unfair. From the privacy point of view Ms C was, as the tribunal found, not concerned about the content of the tapes. This lack of concern over content suggests she did not consider she had told Mr Harder anything particularly private. If one is to make a record of information supplied, as must have been anticipated, there are circumstances when it is appropriate, from more than one perspective, to have as full and accurate a record as possible. That is achieved if a tape recording is made (para ).
The majority noted that in any case, accuracy of personal data was a standard that was promoted by the OECD guidelines (para ). The Court therefore found on the IPP 4 issue that in the circumstances, Mr Harder did not act unfairly when seeking to make an accurate record of what was said between himself and a person who was both a prosecution witness and a party on the other side of a civil issue in respect of his client .
In the result, the majority of the Court of Appeal allowed the appeal and quashed all orders made by the tribunal except that the name of the complainant was to continue to be suppressed (para ).
Dr Paul Roth, University of Otago.