Satyanand, Anand --- "Interface between the Official Information and Privacy Acts" [2002] PrivLawPRpr 20; (2002) 9(1) Privacy Law and Policy Reporter 8

Interface between the Official Information and Privacy Acts

Anand Satyanand

This paper was given at an International Symposium on Freedom of Information and Privacy, Auckland, 28 March 2002, organised by New Zealand Privacy Commissioner Bruce Slane, and is reproduced here by kind permission of the Commissioner and the author. While the discussion is very specifically about the relationship of the two New Zealand laws, read together with Bruce Slane’s article it illustrates some issues of general application — Associate Editor.

The Official Information Act 1982 (NZ) (OIA) applies to all information held by public sector agencies that are subject to the OIA. This includes departments, ministries, crown entities, state owned enterprises, ministers of the crown, local authorities, district health boards, school boards of trustees and tertiary institutions.

By definition, personal information held by public sector organisations is a subset of official information. The interface between the OIA and the Privacy Act is limited to the extent that the information at issue comprises or includes personal information about a natural person.

For public sector agencies subject to the OIA, the interface occurs:

• on receipt of a request, when they must determine which Act applies; and
• in making a decision whether to grant the request, when the agency must decide whether there is good reason to refuse the request in order to protect personal privacy.

In general terms the OIA provides a code as to when requests for information may be refused. Section 5 of the OIA provides that:

The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of the Act and the principle that the information shall be made available unless there is good reason for withholding it.

Whether there is good reason to withhold information in order to protect the privacy of natural persons is governed by s 9(2)(a) of the OIA. Section 9(2)(a) will provide good reason to withhold information if, and only if:

• the withholding of the information is necessary to ‘protect the privacy of natural persons, including that of deceased natural persons’; and
• this interest is not ‘outweighed by other considerations which render it desirable, in the public interest, to make that information available’.

When considering whether it is necessary to withhold specific information, each case must be considered on its own merits. While an agency’s general or historical practices may be relevant in this regard, they are not determinative. The fact that a practice is longstanding does not necessarily mean that it is justified in the circumstances of every case.

Section 9(2)(a) reflects one of the purposes set out in s 4 of the Act, which is to ‘protect official information to the extent consistent with the public interest and the preservation of personal privacy’. However, s 9(2)(a) is subject to s 9(1). This means that even if there is a privacy interest in the information that requires protection, the agency must still consider whether, in the circumstances of the case, the public interest requires disclosure of the information in any event.

The test to be applied under s 9(1) is whether the considerations favoring disclosure outweigh, in the public interest, the need to withhold the information to protect privacy. The exercise is not so much one of balancing competing interests, but rather assessing the weight of competing interests in the circumstances of a particular case.

In making that assessment, matters such as:

• accountability for a decision being made;
• transparency of a process; and
• ensuring that natural justice is accorded;

may be relevant to a consideration of whether the public interest requires release of information.

Privacy issues often arise in the context of situations where information is requested in order to:

• challenge allegations of impropriety or illegality;
• challenge decisions or recommendations made in an employment context;
• enable parents to access meaningful information from their children’s school records; or
• obtain information about remuneration in the public sector.

In some cases there may be a public interest in releasing sufficient information to enable requesters to fulfil these objectives, notwithstanding concerns about personal privacy.

While the application of the OIA is triggered by requests for access, the assessment of whether any of the reasons for refusal under s 9(2) apply usually turns on the purpose for which the information may be used. Similarly, the purpose for which the information may be used will also be relevant when identifying and weighing competing considerations under s 9(1).

The right under s 23 of the OIA to obtain a statement of reasons for decisions and recommendations provides a very clear illustration of the importance of knowing how information has been used.

In respect of the Ombudsman’s role in reviewing decisions to withhold information pursuant to s 9(2)(a), there is a statutory requirement to consult the Privacy Commissioner before forming a final view that the request should not have been refused. In this regard, there has been nearly a decade of experience of such consultation between the Ombudsmen and the Privacy Commissioner.

The Ombudsmen’s general approach to the application of s 9(2)(a) of the OIA is covered in the Practice Guidelines that the Office of the Ombudsmen publishes from time to time.

Judge Anand Satyanand is one of the New Zealand Ombudsmen.