Chapter 6: Protecting privacy

The options presented in the issues paper

Three substantive options were put forward in the issues paper.200 We also asked for alternatives. However, submitters on the whole responded to the three options identified and none identified any different alternatives.

Option 1 proposed improving the privacy withholding ground through clearer and firmer guidance from the Ombudsmen supplemented by case examples to assist agencies to identify and then balance privacy and public interest factors. This option met with a high level of approval. Submitters thought that guidance currently is not clear enough about the public interest balancing required, that guidance should clarify the statutory interface between the Privacy Act and the official information legislation, that in particular it should include guidance on consultation with people having a privacy interest in the requested information and it should allow the withholding of the names of junior officials.

Options 2 and 3 proposed legislative change to the withholding ground. The level of support for legislative change (24 submitters supporting either option 2 or 3) was slightly less than the level of support for the non-legislative option (27 submitters supporting option 1).

Option 2 proposed a restatement of the privacy withholding ground with a formulation used in the Privacy Act as an access withholding ground,201 which has been adopted in Australia for freedom of information purposes.202 Agencies would initially determine whether release of the requested information would involve an unreasonable disclosure of information affecting the privacy of any natural person, including a deceased person. A privacy interest identified on this basis would then be subject to the public interest balancing exercise, so that information could be released, even where it would amount to an unreasonable disclosure, where desirable in the public interest.

There was a small level of support for this restatement option, including from the Privacy Commissioner, although the Ombudsmen thought that the restated ground would not be much simpler than the current withholding ground. There was also concern that this option would involve subjective decision-making and time-consuming disputes.

Option 3 received a significantly higher degree of support than option 2. This option proposed restating the withholding ground so that agencies would initially determine whether the disclosure of personal information would be prohibited under principle 11 of the Privacy Act. Agencies would then apply the public interest balancing test so that information could be released, even in breach of principle 11, where desirable overall in the public interest.203 This approach is used in the United Kingdom and in New South Wales.

Reasons stated in support of option 3 were that it would enhance consistency between the statutes, it would create a uniform base privacy standard and it would contribute to a more “seamless” approach between the legislation. Crown Law favoured the option to make it clear that privacy principle 11 is to be considered in official information privacy withholding decisions. Some responses also felt that guidance alone is not sufficient. Against option 3 was the view that it would introduce a more complex and prescriptive test, although others thought that the greater integration of the legislation would outweigh this disadvantage. The Ombudsmen were concerned that this option would represent a shift from a necessity test to a breach test and that this could weaken freedom of information rights as it may be less flexible than the current withholding ground.

Issues Paper at [6.18]–[6.37]; Q23. See also Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC IP 17, 2009) at [11.43] – [11.49].

Privacy Act 1993, s 29(1)(a).

Freedom of Information Act 1982 (Cth), s 47F.

A few submitters suggested that the public interest test should not apply to the privacy withholding ground and that it should be a conclusive withholding ground.