Checklist for Ministers and departmental officials

Has the Minister received a request for access to official information?

This may depend on whether it is comment or information already in existence that is requested. A request for information such as a report, memorandum or policy is an official information request and subject to the Official Information Act.

If the Minister is asked to comment on an issue rather than to provide specific information, the request may not be a request for official information. Principle 11 could be relevant to the Minister’s response if the comment included any personal information.

Requests for official information are subject to the Official Information Act and should be dealt with under that Act, not the Privacy Act. If the official information includes personal information, consideration should be given to 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. Releasing personal information in good faith after properly considering it under the Official Information Act will not breach principle 11.

If it is not an official information request:

Personal information has to be made available only where people request access to information about themselves and where none of the withholding grounds apply (principle 6).

Does the Minister 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 to a third party, will it be disclosed in a form which identifies an individual?

If the information is released in a form which does not identify an individual, it may not be ‘personal information’ and the Privacy Act will not apply. However, individuals may be identifiable even if unnamed, particularly where they can readily be identified with a high profile issue.

Generally, if Ministers wish to release personal information, they should release only details which are relevant to the purpose for which the release is being made. Gratuitous release of damaging but irrelevant personal information may breach principle 11.

The information to be released might also include personal information about people other than the individual primarily concerned with the issue. Ministers should consider whether the release of information about those other people 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 Ministers are considered in this checklist. There are other exceptions which may apply in some circumstances.

In each case, the Minister 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?

Principle 11 does not derogate from any provision of 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, Ministers 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 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 to 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.

3. Has the individual concerned authorised the Minister to disclose the information?

a) Could the individual be approached for an authorisation? If a reporter has been approached by the individual, the Minister could ask the reporter to get the individual to authorise the Minister to release the information.
b) What are the terms of any authorisation given by the individual?
c) Has the individual implicitly authorised the Minister’s public response?

If the individual has authorised disclosure, information may be disclosed in accordance with the terms of the authorisation.

Authorisations do not have to be in writing. They may be given orally or inferred from statements made. Individuals may authorise a public response, eg ‘I call on the Minister to explain to the people of New Zealand why I was not granted asylum.’ The Minister need only believe, on reasonable grounds, that the individual has authorised the disclosure.

4. 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?

The threshold is high. The threat must be both serious and imminent. The information must be given to someone who can act to prevent or lessen the threat. Only the information necessary to achieve the purpose should be given. It might not be necessary to disclose all of the information held.

5. 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 Minister 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 only breaches of the disclosure principle which are accompanied by some adverse outcome for an individual amount to an interference with privacy for which remedies may be available.

Examples

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, 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.

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 person 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.

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.

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. The Minister could ascertain whether the group is acting as the individual’s agent. If it is, the Minister could proceed as for example 3.

If the group is acting independently, the Minister could proceed as for example 6. The reasons could be sent to the individual. 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. The Minister learns of the escape of an armed and dangerous convicted offender who is known to still be in a particular district. It is very likely that the offender will harm an individual.

The Minister could release some relevant details concerning the individual to warn of the escape, because there is a serious and imminent threat to public safety and the disclosure will 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.

The Minister could 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 the facts on which the Department’s actions were based, 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 would be happy to oblige. Again, these facts could be set out in a letter to the individual and the media duly informed.

7. A Minister wishes to outline circumstances which make individuals ineligible for permanent residence or for benefits. The circumstances do not identify any particular individuals.

This is not personal information, and may be disclosed.

8. In making allegations against a Department, an individual has released considerable personal detail to the news media. 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 to 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 the individual is not harmed, there would not be an interference with the individual’s privacy under section 66 of the Privacy Act.