Chapter 6: Protecting privacy

 

Further option

We continue to hold the view expressed in the issues paper that clearer guidance and case examples illustrating the privacy withholding ground are needed.204

Based on the level of support for legislative change and the concerns expressed in submissions, we continued to explore ways in which the privacy withholding ground might be restated in the interests of clarity and greater consistency. Submissions revealed that neither option 2 nor option 3 is the ideal answer. Feedback on both options was that they would introduce a more complex and prescriptive test than the current privacy withholding ground. The introduction of “unreasonableness” under option 2 would not provide sufficient clarity, while the alignment with privacy principle 11 by option 3 would introduce undue complexity.

We therefore developed a revised formulation, that drew on aspects of both options 2 and 3, and which aimed for greater conceptual consistency with the Privacy Act while retaining sufficient clarity and simplicity. We then consulted with a number of central agencies (including the Privacy Commissioner and the Ombudsmen) on the following revised privacy withholding ground:

Protect information where the making available of the information would be an interference with the privacy of the individual, whether living or deceased.

For the purposes of section 9(2)(a), the making available of information is an interference with the privacy of an individual if,

(a)It would disclose personal information about that individual; and

(b)There are reasonable grounds to believe that the disclosure:

(i)May cause loss, detriment, damage or injury to that individual or, in the case of a deceased individual, to that individual or a close relative;205

(ii)May adversely affect the rights, benefits, privileges, obligations, or interests of that individual or, in the case of a deceased individual, to that individual or a close relative; or

(iii)May result in significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual or, in the case of a deceased individual, to that individual or a close relative.

This used the concept of “personal information”, a term that is central to the Privacy Act, and is also used in the official information legislation (currently for the purpose of access to personal information under Part 4) and the concept of “disclosure”. The revised formulation also adapted the Privacy Act concept of “an interference with privacy,”206 to the official information context.

The aim of the revised provision was to offer more certainty than the issues paper’s option 2 by providing a clear statement of the sorts of disclosure that justify withholding, rather than relying on the more general test of unreasonableness. It is less complex than option 3 as it does not import a technical principle 11 analysis. It would meet the aim of improving legislative coherence by drawing on concepts that are central to the privacy legislation and adapting these for the purpose of the official information legislation’s privacy withholding ground.

The concept of “harm” would introduce a filter for the purposes of the public interest balancing test. Where no form of harm could reasonably be expected to result from the release, the privacy withholding ground would not apply and the requested information could be released without an agency having to apply the public interest balancing test. However, the range of harm is reasonably broad, and it was not intended that the new filter would reduce the extent to which privacy is protected by the withholding ground, except possibly in relation to very minor privacy interests.

One agency we consulted however felt that introducing the concepts of “reasonable grounds” and “harm” would complicate the task for agencies, and that the current withholding ground is sufficiently flexible. The Privacy Commissioner did not favour this approach either, regarding it as potentially weakening privacy protection under the legislation by requiring agencies to predict what harm might arise from a disclosure, a potentially speculative endeavour. On balance therefore, given that any statutory alteration of the privacy withholding ground would carry its own disadvantages, we have decided not to recommend any amendment to the provision.

We do however recommend that the development of new and comprehensive guidance on the privacy withholding ground is essential, given the difficulties with the provision that were outlined to us in submissions. This is essentially option 1 as expressed in the issues paper and which received a significant degree of support in submissions. Guidance in this area should be developed jointly by the Office of the Ombudsmen and the Office of the Privacy Commissioner, in consultation with any other appropriate agencies.

R19The privacy withholding ground should not be amended, but new and comprehensive guidance on this withholding ground should be developed as a matter of priority by the Office of the Ombudsmen and the Office of the Privacy Commissioner.

Chapter 2, R4.

For a definition of “close relative” see Income Tax Act 2007 s FC1 where this term means:

(a)A surviving spouse, civil union partner or de facto partner of the deceased person; or

(b)A person who is within the second degree of relationship to the deceased person.

Cf Financial Markets Conduct Bill, cl 117(3) definition of “immediate family member” means the person’s spouse, civil union partner, de facto partner, parent, child, step-parent or stepchild.

Privacy Act 1993, s 66(1).