Roth, Paul --- "Failure to provide access: Prisoners and plaintiffs compensated" [2004] PrivLawPRpr 46; (2004) 11(4) Privacy Law and Policy Reporter 109

• Failure To Provide Access: Prisoners And Plaintiffs Compensated

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Failure to provide access: Prisoners and plaintiffs compensated

Paul Roth

Two recent personal information access cases decided by the New Zealand Human Rights Review Tribunal have raised important wider issues. The Tribunal has first instance jurisdiction over privacy cases once they have been investigated by the Office of the Privacy Commissioner. One case raised the larger policy issue whether criminals ought to have the right to retain compensation awarded to them for breaches of their rights when they are in prison for having breached the rights of others. The other case raised the issue whether individuals are entitled to everything that is on their files, even if the file contains material that is not, strictly speaking, information about the individual concerned.

MacMillan v Department of Correction – the prisoner

In MacMillan v Department of Corrections,[1] the plaintiff had been denied access to a letter written about him for nearly three years. The plaintiff, described by the Tribunal simply as having been “convicted of a serious offence in 1989”, was sentenced to a term of life imprisonment for his crime. In 1999, he was on temporary release to complete a rehabilitation programme. While in this programme, he formed a relationship with a teenage girl, and there were other breaches of the terms of his temporary release as well. As a result, he was recalled to prison. Shortly afterwards, the father of the teenage girl wrote a letter concerning the plaintiff to the manager of the prison where the plaintiff was being held. Upon receipt of the letter, the prison superintendent summoned the plaintiff into his office and informed him of the letter, and by whom it had been sent. The Superintendent was very angry, and read parts of the letter to the plaintiff. The letter included an allegation that the plaintiff had been involved with or had encouraged bestiality. The plaintiff requested a copy of the letter, but this was denied. The verbal request was followed up by a written request. It was not until nearly two years later, after the intervention of the Privacy Commissioner, that the plaintiff was provided with an edited copy of the letter. The plaintiff, however, was unhappy with the extent to which the letter had been edited, and he continued to seek to obtain an unedited copy of the letter. After a further year, another edited copy of the letter was provided to him. This version disclosed allegations accusing the plaintiff of having introduced the writer’s daughter to “perverted sex”, which was described with some additional detail.

The defendant accepted that it failed to give the plaintiff access to information to which he was entitled. The issue facing the Tribunal, therefore, was what remedies, if any, it should grant.

The plaintiff claimed that the prison’s failure to give him access to the letter caused him humiliation, loss of dignity, and injury to feelings. In particular, other people in the prison system, both officials and some inmates, were aware of letter’s contents. The plaintiff stated that if he had been given access to the letter, he would have taken steps to challenge the allegations made against him. The Tribunal accepted the plaintiff’s evidence in this regard, and added:

“We also think it understandable that for a prisoner to be told of a letter containing potentially damaging allegations about the prisoner, but not then given access to the letter, is likely to engender some injury to feelings at least in the form of anxiety or distress at the thought that those who are in a position to influence or decide his future, or his conditions, were aware of information that he was not able to respond to as he would otherwise have tried to do.”[2]

In the result, the Tribunal awarded the plaintiff the “modest” sum of $1,200.

The aftermath

The result in this case caused widespread public outrage.[3] As the plaintiff’s name had been made public, it was a simple matter for the media to report precisely what his crime had been. He had raped and murdered a teenage girl in exceptionally brutal circumstances in 1988. The victim’s mother was asked what she thought of the Tribunal’s award of damages for “hurt feelings” to her daughter’s murderer, with predictable results. The case was also widely misinterpreted by the media. It was suggested by some that the plaintiff in this case was being compensated for hurt feelings at the contents of the letter that had been withheld from him, and not because the letter had been deliberately withheld from him by his jailers for nearly three years.

A High Court decision about a fortnight later that awarded damages of $130,000 to five prisoners in respect of breaches of their human rights, for their mistreatment while in prison, caused a further public outcry along the same lines.[4] This impelled the government to announce in early October its intention of introducing legislation to restrict the circumstances in which such payments might be made to prisoners. Compensation would be limited to “exceptional cases”, and civil claims would be able to be made by their victims, allowing them to share in any windfalls collected by convicted offenders. The Minister of Justice, the Hon Phil Goff, described the rationale underlying the proposed legislation as follows:

“Clearly, what has sparked the need for this legislation is the prospect of a large number of people claiming compensation in a way that most of us find absolutely unpalatable — that they should get compensation for the wrongs that may or may not have been done against them, but their victims, who have been severely damaged by their actions, get nothing.”[5]

The Prime Minister, the Rt Hon Helen Clark, also commented in Parliament concerning the result in the Macmillan case in this connection. She stated that:

“The person concerned was an appalling murderer, and frankly, I find some difficulty with the Human Rights Review Tribunal awarding him anything. However, it did, and the amount of money was relatively small. ... In future, any such consideration by that tribunal or the other courts will be governed by the new rules.”[6]

CBN v McKenzie Associate – the plaintiff

In CBN v McKenzie Associates,[7] the defendant also accepted that it had failed to make personal information available in breach of information privacy principle 6 of the Privacy Act. The plaintiff was involved in a stressful family law dispute and he requested the law firm representing him to provide him with a copy of his file after it refused to act for him because of his unpaid account. The firm, however, refused to provide the plaintiff with a copy of his file unless and until he paid his overdue account. The firm was thus asserting a “solicitor’s lien” over his file. There had previously been two Privacy Commissioner’s case notes on the point that such common law liens do not override the provisions of the Privacy Act.[8] The Rules of Professional Conduct for Barristers and Solicitors reflected this position, and thus there was also a professional responsibility to hand over a copy of the file to the plaintiff. In the result, the Tribunal awarded the plaintiff damages of $2,500 for humiliation, loss of dignity, and injury to feelings.

The most noteworthy aspect of this case was its discussion whether all of the information in the plaintiff’s file was indeed “personal information”, i.e., information “about” the plaintiff, and thus required to be disclosed by the defendant under the Privacy Act. This issue was considered in an obiter (non-legally binding) way only, because the file in question had not been put in as evidence by either party, and the defendant had not taken the point. The Tribunal, however, opined that not all of the information on the plaintiff’s file was likely to have been personal information about the plaintiff. This was on the basis that the file in question related to a family law matter that concerned the position not only of the plaintiff himself, but also that of his child, his former wife, and his former wife’s new partner. If not all of the information on the plaintiff’s file was “personal information” in terms of the Privacy Act, this would have affected the extent of the defendant’s default in the circumstances, since the defendant would only have been required to disclose the plaintiff’s “personal information”, not the file in its entirety.

There was therefore an academic issue whether this other information (as well as the law firm’s own file notes) constituted “personal information” about the plaintiff in terms of the Privacy Act. “Personal information” is defined in s 2 of the Act as “information about an identifiable individual”. The expression “individual concerned” in principle 6 (the access principle)[9] is defined in the following terms: “in relation to personal information, [“individual concerned”] means the individual to which the information relates”.

The point raised by the Tribunal concerned the “severability” of information, whether contained in an individual’s file or in a particular document concerning the individual. Is the holder of the information only obliged to disclose information that is “about” the individual concerned in a narrow sense, or does the duty extend further to the disclosure of documents or files as a whole which, while referenced in relation to the individual who requests access to it, also contains information that is not, strictly speaking, “about” that individual, except in a more general or indirect way (e.g,. information about an individual’s family law case, its progress, other parties involved in it, etc)?

The Tribunal was minded to accept the narrower, more restrictive, scope for “personal information”, and noted that this had also been the Privacy Commissioner’s approach in two earlier case notes, which accepted that in access cases, non-personal information could be severed from personal information contained in documents.[10]

The Tribunal, however, acknowledged that:

“... we accept that there is no ‘bright line’ test which separates that which is obviously personal information about an identifiable individual from that which is not. Much will depend in any given case on the context in which the information is found. There may be particular factors in different settings that compel a conclusion that, although the requesting individual is not named in the information, nonetheless there is a sufficient connection between the information and the requester to justify a conclusion that the information is personal information ‘about’ the requester.”[11]

Accordingly, the fundamental issue of what falls within the scope of the definition of “personal information” (and thus the Privacy Act) and the issue of severability were left open for determination in a future case where the matter could be more fully argued in light of all of the authorities.

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[1] Decision No 41/04, 18 August 2004.

[2] Ibid, para 24.

[3] Similar public outrage followed former New South Wales Privacy Commissioner Chris Puplick’s expressed concern for the privacy rights of the convicted backpacker serial killer Ivan Milat and the gang rapist Bilal Skaf in 2002.

[4] Taunoa and Ors v Attorney-General, High Court, Wellington, CIV 2002 485 742, 7 April 2004, Young J. The decision fixing the quantum of damages was issued on 2 September 2004.

[5] Hansard, Questions to Ministers for Oral Answer, 5 October 2004.

[7] Decision No 48/04, 30 September 2004.

[8] Case Notes 7873 [1977] NZ PrivCmr 2 and 16579 [2001] NZ PrivCmr 23.

[9] Information privacy principle 6 begins as follows: “Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled” to obtain confirmation that the agency holds it or not, and to have access to it.

[10] Case Notes 4292 (November 1996) and 5169 (October 1998). The former case concerned whether examination questions had to be disclosed together with the requester’s answers to them. The latter case concerned whether the subject of a news videotape concerning his criminal trial was entitled to images not of him, but of the background to his trial. In both cases, the Privacy Commissioner formed the view that the non-personal information was severable from the personal information, and therefore did not have to be disclosed to the requester. For criticism of this approach, see Paul Roth, Privacy Law and Practice, LexisNexis, Wellington, 2003, pp C/46-C48 (para [1002.10]).

[11] Paragraph 41.