Requesting personal information from public sector agencies in matters of public controvers
Should the journalist make a request for access to official information?
Requests by journalists for information held by public sector agencies are requests for official information and are subject to the Official Information Act. They should be dealt with according to that Act. If the official information includes personal information, consider section 9(2)(a), Official Information Act. The Ombudsmen have said that when considering section 9(2)(a), agencies must:
- identify the actual privacy interest requiring protection;
- assess the strength of the privacy interest in the circumstances of the particular case;
- identify any considerations favouring disclosure of the information in the public interest;
- assess the relative strength of such considerations favouring disclosure; and
- consider whether in the circumstances of a particular case, they outweigh the need to withhold the information to protect personal privacy.
(‘Protection of Privacy Under the Official Information Legislation’ (1997) 3(4) Ombudsmen Quarterly Review, 1.)
See the Ombudsmen’s Practice Guidelines No. 6 for the issues public sector agencies must take into account when dealing with requests which involve personal information. Releasing personal information in good faith after properly considering it under the Official Information Act will not breach principle 11 of the Privacy Act.
If a journalist asks for comment on an issue rather than for the provision of specific information already held, the request may not be a request for official information even if it is made to a public sector agency. This is because the public sector agency will have to create the information to respond to the inquiry. Such requests would have to be dealt with under the Privacy Act.
If it is not an Official Information Request:
Personal information must be made available only where people request access to information about themselves and where none of the withholding grounds apply (principle 6, Privacy Act). In some cases another Act may require information to be given out on request, such as a right of search of a public record.
Does the agency wish to disclose personal information?
If the Official Information Act does not apply and there are no other statutes requiring disclosure, disclosure is entirely discretionary. It cannot be compelled.
If information is to be disclosed, does it need to be disclosed in a form which identifies an individual?
If the information can be released in a form which does not identify an individual, it may not be ‘personal information’ and the Privacy Act would not apply. For instance, a request might be answered with the release of a protocol or policy document.
The information could also be released after identifying details had been removed. However, an individual may be identifiable even if unnamed, particularly if the circumstances leading up to the request indicate that the information is likely to be about a particular person.
Generally, if agencies wish to release personal information, they should release only those details which are relevant to the purpose for which the release is being made. Gratuitous release of damaging but irrelevant information may breach principle 11.
The information to be released might also include personal information about individuals other than the individual primarily concerned with the issue. Agencies should consider whether the release of information about those other individuals is warranted in the circumstances.
If information is to be released in a form which identifies the individual concerned, do any of the exceptions in the Privacy Act allow the disclosure?
Only the exceptions which appear to be most relevant to public sector agencies are considered in these guidelines. There are other exceptions which might apply in some circumstances.
In each case, the agency must have a belief on reasonable grounds that the exception applies in the circumstances.
1. Is disclosure of the information authorised or required by law?
a) What is the law which requires or authorises the disclosure?
b) What information may be disclosed pursuant to that law?
The privacy principles do not derogate from any law which authorises or requires information to be made available. The law under which the information was obtained may also require or authorise disclosure of some or all of it.
If a law requires disclosure, the information must be made available. If a law authorises disclosure, agencies can choose not to make it available.
If a law requires or authorises the release of some information, that does not justify a wholesale disclosure. Principle 11 would apply to any information which was not disclosed in accordance with that law.
2. Is disclosure to the individual concerned?
a) Is the journalist in contact with the individual whose information has been requested?
b) Could the information be sent directly to that individual?
Principle 11 allows information to be disclosed to the person who is the subject of it. Journalists who are in touch with a person about his or her story could suggest to agencies that they send the information directly to the person concerned, who could then give it to the journalist. This may allay the concerns of some agencies who have concerns with disclosing to the media, and would expedite the request.
3. Is disclosure one of the purposes in connection with which the information was obtained or directly related to those purposes?
a) What were the purposes for which the information was obtained?
b) Was disclosure one of those purposes?
c) Is disclosure directly related with those purposes?
If disclosure is one of the purposes for obtaining the information, or if disclosure is directly connected with those purposes, the information may be disclosed.
4. Has the individual concerned authorised the agency to disclose the information?
a) An authorisation does not have to be in writing. It may be given orally or inferred from statements made.
b) Could the individual be approached for an authorisation? If a reporter has been approached by the individual, the journalist could ask the individual to authorise the agency to release the information.
c) What are the terms of any authorisation given by the individual?
d) Has the individual implicitly authorised the agency’s public response, eg ‘I call on the Minister to explain to the people of New Zealand why I was not granted asylum’?
If an individual has authorised disclosure, the information may be disclosed in accordance with the terms of the authorisation.
If an individual approaches the media over an issue, such as a Department’s handling of a case, the individual concerned could be asked to authorise the Department to release personal information to the journalist.
Journalists could ask for this authorisation prior to approaching the Department as a way of testing the individual’s credibility. This may allay the concerns of some agencies who are worried about disclosing to the media, and would expedite the request.
5. Is disclosure of the information necessary to prevent or lessen a serious and imminent threat to public health or public safety; or the life or health of an individual?
a) What is the nature of the threat?
b) Is the threat both serious and imminent?
c) Will the disclosure of the information actually prevent or lessen the threat? Is it to someone who can lessen or avert the threat?
If there is a serious and imminent threat, information may be disclosed only to the extent necessary to prevent or lessen that threat. Only the information necessary to achieve the purpose should be disclosed. It might not be necessary to disclose all of the information held.
6. Is disclosure necessary: To avoid prejudice to the maintenance of the law by any public sector agency?
a) What is the law to be maintained?
b) Is it maintained by a public sector agency?
c) Will disclosure avoid prejudice to the maintenance of the law?
For the protection of the public revenue?
a) How is disclosure necessary in the circumstances?
The agency should be satisfied that maintenance of a particular law is at issue and that the proposed disclosure would avoid prejudice to that law.
Could releasing the information harm an individual?
Not all disclosures made in breach of principle 11 will result in an interference with privacy. Section 66 of the Privacy Act provides that remedies are only available for breaches of principle 11 which result in some adverse outcome for the individual concerned.
1. A journalist asks a Minister to comment on the suitability of a person for a position in a government agency.
This may not be a request for access to official information, if it does not involve more than the Minister’s comment. Any comment made which contained personal information would need to be considered under principle 11 of the Privacy Act.
If the journalist asked for the Department’s report on the appointment made, that would be a request for official information and should be treated as a request under the Official Information Act. See the Ombudsmen’s Practice Guidelines.
A response that the information could not be released ‘because of the Privacy Act’ should be challenged.
2. A journalist asks for the departmental file on a person to write an article about the Department’s refusal to grant permanent residence.
This is a request for official information because it involves existing information and has been made by someone other than the individual who is the subject of the information. It should be treated as an Official Information Act request, and reference could be made to the Ombudsmen’s Practice Guidelines.
A response that the information could not be released ‘because of the Privacy Act’ should be challenged.
3. An individual goes to the media about the Department’s refusal to grant permanent residence. The individual specifically asks in the media, for the Minister to explain why the application was declined.
The Minister could treat this as a request for reasons under the Official Information Act. The Minister could respond directly to the individual concerned, or treat the mode of the request as an implied authorisation to disclose the information through the media. The Minister should only disclose information which is relevant to the reasons for the refusal.
To expedite the process, the journalist could suggest that the Minister contacts the person directly. The journalist could then approach the person for the information.
4. Citizens for Fair Immigration Inc. demand, through the media, the reasons for the Department’s refusal to grant an individual permanent residence.
This should not be treated as an implied authorisation by the individual to disclose information through the media. It should be ascertained whether the group is acting as the individual’s agent. If it is, the Department could proceed as for example 3.
If the group is acting independently, the Department could proceed as for example 6. More detailed reasons about the specific case could be sent to the individual concerned. The media or the group could then be told that this had been done and that they should ask the individual for a copy of the letter.
5. An armed dangerous convicted offender has escaped and is known to be in a particular district. It is very likely that the offender will harm an individual.
Some relevant details concerning the individual could be released to warn of the escape, because there is a serious and imminent threat to public safety and the disclosure would enable citizens to take precautions thereby lessening the risk. The disclosure should be directed to media published in the area.
6. Someone goes to the media about a Department’s decision to stop their benefit and is quoted as saying it shows the unfairness of the policy.
It might be possible for the Department to comment in a way that discloses no further information than is already in the report (for instance explaining how the policy is designed to apply and why it says what it does).
If the individual has misrepresented that Department’s actions, the Minister could say that there are some undisclosed facts which give a somewhat different picture and, if the individual would authorise release of further details from the Department’s files, the Minister will be happy to oblige.
Alternatively, these facts could be set out in a letter to the individual and the media informed that it had been sent. Journalists could ask the person for this information as a test of their credibility.
7. In making allegations against a Department, an individual has released considerable personal detail to the news media, which has been published. The Minister wishes to respond to the allegations using those details, but wants to add some further detail in order to answer specific allegations.
By releasing a large amount of personal information in the media, the individual is taking the risk that unfavourable publicity could result. If the Minister releases only information which is relevant to the issues raised by the individual, that person may not be able to claim that any particular harm was caused by the Minister’s disclosure rather than by the individual’s own disclosure. If harm could not be claimed, the disclosure would not have caused an interference with the individual’s privacy under section 66 of the Privacy Act and remedies would not be available.
8. A journalist wants to know the criteria for eligibility for permanent residence to use in a story about a person who was denied residence.
The Minister could release the criteria as they would not involve any personal information. Section 9(2)(a) of the Official Information Act would not be quoted as a withholding ground. If the journalist wanted to know which particular criteria the person failed, the Minister could proceed as for example 2.