Privacy Commissioner - Te Mana Matapono Matatapu

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Breach of another's privacy

This section of the Act is designed to protect the privacy of people other than the requester. A requester's right of access to information about themselves is very strong. Sometimes, though, other people's privacy rights are even more important.

This section is most often used in situations where information about the requester is also information about someone else. For example, suppose a file contains information about why a child was placed in foster care. One parent asks for access to information about themselves from the file. Information on the file about that parent may have come from other people in the family, or may involve details of family relationships. The information is about both the parent and those other people, including the child. The agency needs to think about the privacy of those other people as well.

Another common situation is where one person makes a complaint about another's behaviour. It is important that the person who the complaint is against should know enough to be able to have their say. But the complainant may also have given details of how the behaviour affected them personally, or may not wish to be named. In that situation, the agency also needs to consider the complainant's privacy. This section shows the agency what steps to take.

• What are someone's "affairs"?
• Should an agency use this section to withhold information that is only about the other person, not about the requester?
• When will the other person's privacy be more important than the requester's right of access?
• Can an agency use this ground to refuse to tell me who informed on me?

What are someone's "affairs"?
In practice, "affairs" means any information about the other individual, including who they are.

Should an agency use this section to withhold information that is only about the other person, not about the requester?
No. If it is not information about the requester, the requester is not entitled to get access to it under principle 6.

This section applies to information that is about the requester, but that also involves information about other people.

When will the other person's privacy be more important than the requester's right of access?
Requesters have a strong right of access to information about themselves. This means that the other person's privacy interests must be even stronger before the agency can withhold the information. In the words of the law, the disclosure of information about the other person must be "unwarranted". To decide whether the disclosure would be unwarranted, the requester's privacy rights are balanced against the other person's privacy rights.

Some useful tips for seeing whether the other person's privacy is stronger than the requester's rights of access are:

• how sensitive is the information about the other person? The more sensitive the details are, the more likely it is to outweigh the requester's right of access;
• does the other person object to the requester getting the information? If the other person doesn't mind, then giving it to the requester won't be a problem;
• what harm might there be to the other person if the requester gets the information? Slight embarrassment isn't likely to be enough to outweigh the requester's right of access. But serious embarrassment might well be. If the disclosure would expose the other person to harassment, this could well be relevant. Serious damage to relationships may also be enough (see Case Note 25473);
• The effect on the other person may depend on their individual situation, for instance whether they live in a small community or what their home circumstances are;
• is it necessary to disclose the information to make sure that the requester has a full and fair opportunity to respond to any allegations made against them? If the requester can have their say without the information, it's easier to show that the other person's privacy rights can outweigh the requester's rights of access (see Case Note 83694);
• is it clear that the requester already knows the information about the other person? If so, releasing it is less likely to be an unwarranted breach of the other person's privacy (see Case Note 84948). 

Can an agency use this ground to refuse to tell me who informed on me?
Quite possibly, though this will depend on whether the disclosure of the information would be unwarranted. This might be the case where the informant expressly asked the agency to withhold their identity from you. This might also be the case where the agency thinks that revealing the identity of the informant may put that person in danger. If the agency has a law enforcement function, however, the maintenance of the law withholding ground may be more relevant. And the agency can also withhold information on safety grounds.


References

Privacy Act 1993
Section 29(1)
An agency may refuse to disclose any information requested pursuant to principle 6 if -

(a) the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual or of a deceased individual

 HRRT/Court cases: