Chapter 6: Protecting privacy

 

Privacy interest of the deceased

In the issues paper we noted that the official information legislation protects the privacy interest of the deceased.207 This is in contrast to the Privacy Act which does not generally recognise the privacy interest of the deceased except in certain circumstances.208 We noted that because of the presumption in the official information legislation in favour of release, it is appropriate for the privacy withholding ground to protect the privacy interest of the deceased, subject to countervailing public interest factors. A couple of submitters challenged the express recognition of the privacy interest of the deceased; but a large majority supported the current position.

We also noted that some jurisdictions are explicit about how long the privacy interest of the deceased is protected. New South Wales specifies that the period is 30 years. Only three submitters supported a change to introduce a specific period of privacy protection for the deceased: two submitters supported a 30 year period, while Archives New Zealand supported a 25 year period.

We maintain our initial view against introducing a specific time period. There was not a high level of support, and we think that one risk of using a bright-line is that information within the stated period would tend to be automatically withheld, without due attention to any public interest factors favouring release. The appropriate place for a bright-line period is the Public Records Act 2005 where there is an obligation on agencies to classify public records as having either open access or restricted access after 25 years.209 This requirement will involve an assessment of whether the privacy interest of the deceased has faded at that point. The case by case approach however remains appropriate for the official information legislation.

R20The privacy withholding ground should continue to protect the privacy interest of the deceased, as it does at present.

Issues Paper at [6.38].

See Law Commission, Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC R123, 2011) at [2.56]–[2.69].

Public Records Act 2005, s 43, s 45.