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Roth, Paul --- "Remedies under New Zealand law - Part 3" [2004] PrivLawPRpr 16; (2004) 10(10) Privacy Law and Policy Reporter 16


Remedies under New Zealand law — Part 3

Paul Roth UNIVERSITY OF OTAGO

This is the third part of Paul Roth’s systematic examination of remedial powers under the New Zealand Privacy Act 1993 and cases on the award of remedies under each power. The previous parts are in (2003) 10(8) PLPR 153 and (2004) 10(9) PLPR 174. This part continues the examination of damages available under s 88 — General Editor.

Damages for humiliation, loss of dignity, and injury to feelings (section 88(1)(c))

Two classes of award under section 88(1)(c)

Section 88(1)(c) of the Privacy Act 1993 (NZ) (the Act) makes provision for awards for ‘humiliation, loss of dignity, and injury to the feelings of the aggrieved individual’. There are two classes of such awards: those made where the interference with privacy falls under s 66(1), and those that fall under s 66(2). Interferences with privacy that fall under s 66(2) are limited to those arising from a decision made under Pt IV (Good reasons for refusing access to personal information) or Pt V (Procedural provisions relating to access to and correction of personal information) of the Act. The difference between awards made in respect of s 66(1) and (2) is that the former provision requires that the action concerned ‘[h]as resulted in ... significant humiliation, significant loss of dignity, or significant injury to feelings’ (s 66(1)(b)(iii)) (emphasis added). Awards made in respect of s 66(1) therefore will tend to reflect that high degree of emotional harm. The requirement of such a high degree of harm is one way that the Act filters complaints, so that not every minor breach of the privacy standards becomes actionable. Section 66(2) interferences, on the other hand, which are limited to access and correction rights, do not require this element of ‘significant’ emotional harm. Accordingly, awards can be for emotional harm that is short of ‘significant’, so that even nominal damages can be awarded in respect of this head of loss.[1]

Breach of Principle 5 (Storage and security of personal information)

In W v Director-General of Social Welfare (Decision No 12/98, 21 August 1998), the Complaints Review Tribunal (the Tribunal) dealt with a complaint that the defendant disclosed the plaintiff’s personal information in breach of Principle 5 (Storage and security of personal information) to a third party, causing embarrassment and humiliation to the plaintiff. (Principle 11, Limits on disclosure of personal information, was not yet enforceable at the time.) The Tribunal found that the defendant’s training program did not meet sufficient standards in respect to its Privacy Act obligations, and found that the plaintiff had suffered humiliation, loss of dignity and injury to her feelings. The plaintiff had also incurred costs as a result of the defendant’s breach. The Tribunal ordered that the defendant write a letter of apology to the plaintiff, and pay $1000 to the plaintiff pursuant to s 85(2) (in respect of costs) and s 88(1)(c) of the Act.

Breaches of Principle 6 (Access rights)

Under the New Zealand’s freedom of information legislation, the remedy for a breach of access rights is simply a recommendation that the information concerned be disclosed in one form or another. The Ombudsmen’s recommendations, even when they do not automatically convert into public duties, are normally adopted because of the great esteem in which the office of Ombudsman is held. No compensation or other remedies are available under the Ombudsman’s review process. Under the Privacy Act regime, however, compensatory damages and other forms of relief are available as a remedy.

The majority of Tribunal cases where breaches of access rights have been found under the Privacy Act concern public sector agencies that would have been covered under the official information regime prior to 1993. Therefore, requesters under the Privacy Act regime now have available to them a remedy in damages which was unavailable under the official information regime. It might be thought that cases involving breaches of access rights would be unlikely to give rise to compensatable loss, but this has not proved to be the case. Indeed, several cases have attracted substantial awards, including the highest ever awarded in the privacy jurisdiction.

Nominal damages were awarded in two cases brought against the police. The amounts awarded were $500 and $200. In Mitchell v Police Commissioner [1994] NZCRT 3; [1995] NZAR 274; [1995] 1 HRNZ 403, the police professed to have been unable to find the originals of several documents. The complainant was urgently seeking these for use in a private prosecution against a constable for failing to answer a summons served on him in the original hearing of several criminal charges against her. On the day of the hearing of her private prosecution, however, some of the documents sought were produced in evidence by the constable. Nominal damages were awarded on the basis that the evidence had no impact on the outcome of the hearing, and the original of the document she particularly sought was identical to a copy she had already seen. In Proceedings Commissioner v Commissioner of Police (Decision No 18/2000, 10 July 2000), the police refused to disclose the identities and addresses of the complainant’s assailants on the ground that the request was frivolous or vexatious. The complainant was otherwise known to the police for having lodged a number of complaints and requests for information over the years, often in relation to matters in which he was not personally involved. The Tribunal found that the complainant suffered humiliation, loss of dignity and injury to feelings.

The highest amount ever awarded by the Tribunal in an access case was $20,000 for humiliation, loss of dignity, and injury to feelings: L v N (1997) 3 HRNZ 721. The complainant had supervised disabled children for the defendant organisation. He was suspended because a complaint had been made against him concerning an indecent assault on a child in his care. The complainant, however, had never been informed of the reason for his suspension, nor was he aware that the complaint had been taken to the police. He made a number of requests for his personal information, but was never given full information behind an internal inquiry into the matter, his suspension or the complaint to the police. The Tribunal found that ‘the defendant embarked on a course of conduct which exacerbated the effect of the failure to confirm the existence of the information sought by the plaintiff’. Among aspects of the defendant’s conduct that were criticised by the Tribunal were the deliberate concealment of highly sensitive personal information from the plaintiff, even though it was obvious to the plaintiff at the time that this information was being made available to others; the defendant’s concealment of the fact that it had destroyed the plaintiff’s file and reconstructed another after the request for information had been made; the fact that the defendant had similarly misled the Privacy Commissioner during his investigation; and the obstacles which the defendant forced the plaintiff to overcome in his quest for information, which caused an increasing number of people to learn of the damaging but unanswered allegation against him.

In Proceedings Commissioner v Health Waikato Ltd (2000) 6 HRNZ 274, the High Court, on an appeal from the Tribunal, awarded $2000 to a complainant because several documents had been withheld from him in the course of protracted employment litigation, apparently as the result of an oversight. The Court found that the information would have been useful to the complainant’s case. The Court accepted that the complainant ‘would have felt “ambushed” and stressed’ in the original hearing of his employment case when he became aware of the information that had been withheld from him, and he would have suffered further stress and disadvantage in having to decide whether or not to apply to have the newly acquired evidence introduced on appeal, where the respondent was contesting its introduction. The Court therefore awarded damages for injury to the complainant’s feelings both at the time that he discovered that the information existed, and on an on going basis.

In S v Department of Child Youth and Family Services (Decision No 12/2000, 30 June 2000), the Tribunal awarded damages of $2500 because the Department had failed to make information available to the plaintiff in a timely fashion. The plaintiff had requested the information in connection with legal action he was undertaking against the Department for abuse while he was in its care as a child. The Tribunal accepted that the Department’s treatment of a second request for information by the complainant caused him some humiliation. The defendant’s staff had wrongly assumed that the plaintiff had already received the information concerned. The defendant’s staff did not realise how important obtaining the information was for the complainant, and their conduct led him to believe that there was a conspiracy to withhold the information. The Tribunal, however, accepted the Department’s explanation that there had been a series of errors and administrative changes that contributed to the problem. In DAS v Department of Child, Youth and Family Services (Decision No 24/00, 13 September 2000), a case brought against the same Department, and which also concerned a failure to grant timely access to personal information, the Tribunal awarded damages of $7000 for humiliation, loss of dignity and injury to feelings. The complainant, a secondary school teacher who taught students with special needs, had been accused by a pupil of sexual abuse. The Tribunal found that there was undue delay by the Department in disclosing the information relating to the allegation.

In Plumtree v Attorney-General on behalf of the New Zealand Defence Force (Decision No 10/02, HRRT 29/01, 2 October 2002), the Human Rights Review Tribunal ordered the defendant to pay the plaintiff $3000 for humiliation, stress and injury to feelings. In 1998, the plaintiff requested documents which the army claimed had already been disclosed to the plaintiff in response to previous requests for information. The Tribunal accepted that the army had breached Principle 6 in a number of respects. In particular, the Tribunal found at [107] that the army failed to make a decision on the plaintiff’s information privacy request in compliance with the Privacy Act because the previous provision of copies of documents is not a good reason for refusing a request under Pt IV of the Act; and at [112] that the army failed to disclose information that was readily retrievable in terms of Principle 6. The Tribunal found that the plaintiff had suffered as a result of the way the defendant dealt with his requests for information. The Tribunal acknowledged at [157] that:

... it is difficult to disentangle the adverse consequences suffered as a result of the matters found to have been an interference with his privacy from Mr Plumtree’s deep-seated unhappiness about the way in which he sees the army as having treated him generally ...

and accordingly made the ‘modest award’ that it did in this case.

In Jans v Winter (Decision No 21/03, HRRT 39/01, 27 June 2003), the Human Rights Review Tribunal ordered the defendant real estate agent to pay the plaintiffs $5000 for humiliation, loss of dignity, and injury to feelings (plus another $15,000 for loss of a non-monetary benefit: see above). The defendant failed to comply with its obligations under Principle 6 and ‘dealt with the matter in a dismissive and high handed matter [sic]’ [159].

Breaches of Principle 11 (Disclosure)

In W v P (Decision No 2/99, 16 February 1999), the Tribunal dealt with a complaint that a doctor had disclosed personal information about the plaintiff to her mother, also his patient. As a result of the disclosure, the plaintiff’s mother and two of her siblings refused to have any contact with her. Moreover, the plaintiff gained weight, and her work and grades suffered because of her depression over the rift in her family. She required counselling.

The Tribunal was satisfied that the plaintiff had suffered the loss of her relationship with her mother through the defendant’s disclosure of details from her medical file, which caused significant injury to her feelings or emotional state. In the result, the Tribunal ordered the defendant to pay $3000. The Tribunal commented at [4] that:

... the person who must take major responsibility for this damage is probably the complainant’s mother, but that as the person who participated in the triggering event the defendant must take some responsibility — if only for failing to think through the consequences of that which he was asked to do.

In Proceedings Commissioner v Commissioner of Police [2000] NZAR 277, the Tribunal found that the complainant suffered significant humiliation and loss of dignity. A police officer had applied, without the complainant’s knowledge, for a temporary protection order on her behalf under the Domestic Violence Act 1995 (NZ) because she was in a violent relationship. At the same time, however, the officer alerted the media, and he allowed himself to be followed to the complainant’s residence when serving the order, allowing some television viewers to identify the complainant. The Tribunal found that the plaintiff suffered significant anguish not only at the time of the television broadcast, but also afterwards, each time an acquaintance asked her if the police had sought the protection order for her. The Tribunal also adverted to the already disempowered state in which she was in as the victim of domestic violence. In the result, the Tribunal ordered the defendant to pay the plaintiff $10,000 damages pursuant to s 88(1)(c) of the Act.

In B v Commissioner of Inland Revenue (Decision No 8/2000, 12 May 2000), the Complaints Review Tribunal found that the complainant suffered significant distress after a Child Support review officer disclosed her personal income to her partner’s former wife. As a result, the former wife made abusive phone calls to her over a number of months. The Tribunal found at [8] that:

[The phonecalls] were made at a time when [the plaintiff] was heavily pregnant and feeling vulnerable. The net effect has been a disruption in the relationship between the mother and the plaintiff that has yet to be repaired. The plaintiff appears to have been made to feel responsible for matters outside her control (ie the financial obligations of her partner) and over which she had no desire to be involved.

The Tribunal found that the harm was significant, and ordered the defendant to pay $5000 damages for the humiliation, loss of dignity and injury to feelings suffered by the complainant. An unsuccessful High Court appeal by the defendant left this finding undisturbed: Commissioner of Inland Revenue v B [2001] 2 NZLR 566; (2001) 6 HRNZ 262.

In Parker v Ministry of Agriculture and Forestry (Decision No 9/02, 23 September 2002), the Tribunal awarded $4000 damages for injury to feelings where an officer of the defendant effectively disclosed the identity of the plaintiff informant to the person in respect of whom an animal welfare claim was laid. The defendant did not deny liability for the breach of Principle 11, but was disputing the amount of compensation that the plaintiff was claiming. The Tribunal acknowledged at [22] that the defendant ‘acted as responsibly as one might expect it to have done in all the circumstances’.

In Steele v Department of Work and Income (Decision No 12/02, 21 October 2002), the Tribunal awarded $10,000 for humiliation to a person whose application for a social welfare benefit was discussed at a neighbour’s party. The person who disclosed the information was an employee of the Department of Work and Income.

The highest amount of compensation ever awarded for humiliation, loss of dignity, and injury to feelings ever awarded was made in Hamilton v The Deanery (Decision No 28/03, 29 August 2003), for the disclosure of sensitive health information. In that case, $40,000 damages against an alcohol treatment clinic were made for ‘extreme’ breaches of the Privacy Act. The director of the clinic had told immigration authorities that the plaintiff was an active drug user; he told a newspaper of the plaintiff’s length of stay at the clinic, and that she had failed the program; he had told an English tabloid that the plaintiff had been expelled from the clinic for illegal drug use; and he told lawyers for the tabloid that he had a urine test from the plaintiff that confirmed his drug allegations. l

The final part of this article will examine orders to redress harm and other relief, and the overall effectiveness of remedies under the Act — General Editor.

Paul Roth, Associate Professor, Faculty of Law, University of Otago, <paul.roth@stonebow.otago.ac.nz >.

Endnotes

1. This interpretation of s 66 is contrary to the Tribunal’s decision in Jans v Winter (Decision No 21/03, 27 June 2003), but the interpretation accepted by way of obiter dictum in that case was, with respect, mistaken. After several early cases, the point was quite clearly established by the Tribunal in M v Ministry of Health [1997] NZCRT 12; (1997) 4 HRNZ 79, M v Police (1997) 4 HRNZ 91 and Adams v New Zealand Police (Dec No 16/97, 12 June 1997), and it was implicitly accepted by the High Court in L v T (1999) 5 HRNZ 30 and Proceedings Commissioner v Health Waikato Ltd (2000) 6 HRNZ 274. An individual’s right of access to and correction of personal information held by public sector agencies, without having to prove detriment, had previously been conferred under the Official Information Act 1982 (NZ) and the Local Government Official Information and Meetings Act 1987 (NZ). The enactment of the Privacy Act was not intended to downgrade this position, and it is quite surprising that the Tribunal should find that this was indeed Parliament’s intention. The Tribunal appears to have fallen into error by failing to appreciate the legislative context of the Privacy Act, and taking ambiguous statutory wording at apparent face value when its intent should have been clear.


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