Privacy Commissioner - Te Mana Matapono Matatapu

Skip to content

Bulk Release of Public Registers - A New Zealand perspective

Address by the Privacy Commissioner to the 20th International Conference of Data Protection Authorities

16-18 September 1998

INTRODUCTION

"public records pose a challenge to the privacy rights of citizens and, once in digital format, pose an even greater challenge"1

Public registers have long posed a tension between citizens' privacy rights and a wish to have certain information publicly available to serve some public purpose.

While the tension is not new, it is exacerbated by incremental advances in technology. The computerisation of public registers has made them easier to access and the data easier to manipulate. Public registers now provide a useful and cheap tool to direct marketers and data miners, so organisations administering registers are increasingly being pressured to release information in bulk. In New Zealand, resistance to requests for bulk release is countered with freedom of information legislation and the Ombudsmen, who review refusals of requests under that legislation, have stated clearly that the requests must be complied with.

This use of freedom of information legislation is unfortunate and heavy handed. The aims of freedom of information and the aims of public registers are not the same or even necessarily compatible, and overuse of freedom of information in this context may undermine the purpose and reliability of the registers. It is time to re-examine the rationale underlying public registers, recognise the legitimacy of privacy interests and to limit inappropriate use of public register information.

Bulk requests from public registers:
a new purpose through convenience

 
"The debate concerning public records centres on striking the balance between providing personal information that is necessary and useful to realise a public policy goal, while at the same time protecting the privacy of the data subjects as much as possible."2

 
Origins of bulk requests
While information contained in a public register is, to a greater or lesser degree, publicly available, it has not necessarily been widely used by the public. Ease of access and convenience are significant factors in the degree of information utilisation from public registers. There is always an underlying inertia when dealing with the public en masse. The less convenient it is to access information or services, the greater the inertia and the lower the level of use.

Until a few years ago, people wanting information from a public register had to go to an office or library, browse through the register, copy the relevant portion and take it away. People had to be positively motivated before they would seek access, which effectively dissuaded browsing by the casual observer. As physical files can be bulky, searching and copying can be time consuming and the information is not always easily transportable. Thus, the level of convenience can impact on the level of use, so it can act to enhance or reduce privacy.

Computer technology has obviated this protection to a significant degree by altering the physical nature of the records. Computer records can be stored easily in a number of locations, immediately creating greater ease of access. When registers are automated, large numbers of records can be copied quickly and easily onto a computer disk, which is itself highly portable. Electronic information is easier to manipulate than paper records, making it more attractive to end users. Electronic records also give greater flexibility to search references, so more specific information can be searched and extraneous information avoided.

Computer technology has thus increased the ease of access. Add this to certain features common to public registers, and it is not hard to see why requests for bulk data have become more frequent.

Public registers are a source of reliable information. For businesses wanting reliable mailing lists, public registers are valuable source of information. Because they are set up to facilitate access to information, they tend to be arranged logically, making it easier to locate relevant information. The quality of the data may well be higher than data obtained from other sources because of the systematic collection and compulsion involved with establishing and maintaining public registers.

Public registers are a cheap source of information. Typically, in New Zealand, there are limitations on the charge which may be imposed for information from public registers, particularly if a request is made under freedom of information legislation.

If the information is obtained electronically, it does not even have to be transcribed or scanned into a computer: it may be ready to be imported directly into a labelling programme. This saves significant time and money for people whose business involves mailing lists.

Public registers are already convenient, and will become more so. With advances in communications technology, it would be naive not to envisage public registers being widely available over the Internet. This is not yet widespread in New Zealand, but has already happened to some extent.

Convenience is the key to overcoming inertia. If people do not have to leave their homes or workstations to browse through and download public register information, they are more likely to want to access it. Access will no longer be limited in a practical way to those who are prepared to take the trouble to make a request.

The practical privacy protection given by paper records is being diminished. Bulk requests have been enabled by new technology. Because this was not contemplated when many of the statutes establishing public registers were enacted, many of those statutes do not contain references to purposes which would help establish the appropriateness of bulk disclosures of particular registers.

Why do bulk requests pose a problem?

"Most public register information is collected at public expense from individuals by compulsion. We consider it wrong in principle that such information should find its way into the hands of marketing agencies." 3

 
So, bulk requests are now being made and the public registers do not provide any means of limiting them. Like many people, I am uneasy about this. Why? After all, the public registers are just that: public.

Statutes establishing public registers require certain information to be available for public search. Bodies administering public registers are often required to give copies of information to members of the public who do not necessarily have to divulge their reasons for wanting the information. So why are we concerned when people ask for this information for commercial gain?

There are two related answers.
First, there seems to be a vague unease about purpose. Frequently statutes establishing public registers do not specify the purposes for which the register is established or the purposes for which it may be searched. But the purpose is implicit in the nature of the register, the information kept on it, the body administering it, and the degree of public availability. Even if the purpose cannot quite be pinned down, people are uneasy with the thought that the register was set up so that someone could exploit it for commercial gain.

Indeed, many New Zealanders are surprised to find that, in a jurisdiction with a Privacy Act, commercial enterprises can get hold of public register information. There is a natural assumption that, while the information goes on a public register, it goes on for a particular purpose and will be accessed by people for compatible purposes only. The reaction is put succinctly by Geraldine Murphy of the Wellington City Council 4:

"What do you mean they're allowed to have this information?"
This is often the response when individuals are advised that their personal information on public registers can be released to any requester for direct marketing. They are astounded that their personal information ... is generally freely available.

Second, there is a concern about the element of compulsion. It seems wrong somehow that people can be required to divulge personal details, on pain of committing an offence or being denied the ability to do something, only to have that information subject to bulk requests for commercial gain. There seems to be a real unease with the thought that those details may then be published and given out on request without regard to the purpose for which the information will be used or the harm which may ensue.

By and large, New Zealanders accept the necessity of being on a public register when they carry out certain activities, or when they became eligible to vote. Any concerns they have had about security and safety were historically addressed in an ad hoc way, although there is now a more structured procedure to suppress details when people obtain protection orders under the Domestic Violence Act 1995.

Generally, people can choose how much interaction they want with society and, in interacting, how much personal information they want to divulge. Interaction with society diminishes privacy to a certain extent, but that is generally something the individual chooses. But this choice is often denied with public registers. In New Zealand, every adult eligible to vote is required to be on the electoral roll: it is an offence not to be on the roll. Every person who owns a car is required to license it, and the register of licensed motor vehicles is publicly available. Every home owner's details are kept on a public register. People altering their homes need a building consent, and that too must go on a public register. In each of these cases their residential or mailing address has to be supplied and made available.

It seems to be a real source of irritation that public registers can be combed by commercial operators who then create lists for direct marketing or trade the information with other businesses. That seems to rankle all the more because of the compulsion by which the information was first obtained.

Public registers, privacy and freedom of information
The interplay between public register provisions and privacy law can be complex. The use of freedom of information in this context can further - unnecessarily - complicate the situation. My own view is that freedom of information does not sit comfortably with public registers, yet it is used in New Zealand to compel the release of bulk information. Using freedom of information legislation in this way is heavy handed and does not serve either the aims of public registers or freedom of information itself.

Freedom of information legislation tends to contain general requirements that information held by public bodies be made available. Because many - if not all - statutory registers are maintained by public bodies, those bodies tend to be subject to freedom of information legislation. Because the privacy law does not override other laws requiring information to be made available, it has been disregarded on the basis that it is subordinate to the freedom of information legislation.

Part of this problem has arisen through the nature of the public register provisions themselves. Public register provisions invariably set out an entitlement to have access to information. Generally they describe the information to be made available and sometimes proscribe the availability of some information or place constraints on subsequent use. They may also outline how the information is to be made available. However, these provisions may not be sufficiently clear in intent to oust freedom of information legislation.

Freedom of information does not sit comfortably with public registers. Freedom of information legislation is designed to open up government processes, to allow people to participate in those processes and to promote accountability. However, freedom of information is not absolute: it is subject to certain defined limits. In New Zealand, one of those limits is privacy. For instance, section 4 of the Local
Government Official Information and Meetings Act 1987 provides:

The purposes of this Act are --
(a) To provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities, in order --
(i) To enable more effective participation by the public in the actions and decisions of local authorities; and
(ii) To promote the accountability of local authority members and officials, --
and thereby to enhance respect for the law and to promote good local government in New Zealand:
(b) To provide for proper access by each person to official information relating to that person:
(c) To protect official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.

The bulk release of public register information has little to do with effective participation, accountability or good local government. It is thus far from clear to me that granting requests for bulk release is in accordance with the aims of the legislation. Instead, it is being used as a vehicle to gain commercially valuable information.

Land Information Memoranda
There has been considerable debate in New Zealand recently about bulk release of information which can be requested in a Land Information Memorandum (LIM). It is a good example of how freedom of information concepts can conflict with a public register's purpose.

The Local Government Official Information and Meetings Act contains a provision allowing people to apply to territorial authorities for a LIM, which must include information about:

• special features or characteristics of the land such as erosion, subsidence, slippage, or flooding that is known to the authority but is not apparent from the district scheme or plan;
• stormwater and sewerage drains;
• any rates owing on the land;
• consents affecting the land or buildings;
• certificates issued under the Building Act 1991;
• any conditions imposed upon the use of the land.

This provision came into force around the same time as reforms to building and planning laws. It complements the statutory shifting of liability in building cases from local authorities to land owners. Through the 1980s, New Zealand courts had enthusiastically adopted and extended the local authority liability for negligence in building construction established in Anns v Merton London Borough Council ¹⁹⁷⁷ 2 All ER 492 (HL). The result was that local authorities were becoming subject to greater and more indeterminate liability for damage caused by subsidence, slippage and faulty construction.

The provision requires local authorities to disclose everything they know about the land, which puts the purchaser or owner in a strong position to assume risk. The authority's liability is accordingly reduced.

If the purpose of limiting liability is to be achieved in a fair and consistent way, the LIM must be provided to anyone upon request, so Parliament included an absolute requirement upon local authorities to make the information available. There are no withholding grounds.

However, the requirement to provide a LIM is being used by some companies in New Zealand to force bulk release of building consent information. When their requests are refused, they complain to the Ombudsmen.

The Ombudsmen have suggested that the statutory requirement to disclose applies to a request for information that is contained in a LIM, whether or not a LIM is actually requested. In support of this, they have said that a landowner who wants specific information about the location of drains on a piece of land should not have to request a LIM in order to get that information. The Ombudsmen have indicated that this information would have to be disclosed, which seems reasonable, given that the request is not unrelated to the purpose for the LIM.

However, this reasoning has also been extended to apply to bulk requests for the names and addresses of people who have applied for and obtained building consents. There is a world of difference between such a request and the landowner's request for information, which relates very strongly to the purpose for having a LIM. The request for bulk information does not seem related to land use.

As well as noting that the statutory requirement to disclose overrides freedom of information legislation, the Ombudsmen have indicated that the freedom of information withholding grounds would not allow the information to be withheld because it is effectively "publicly available" through the LIM provisions.

This illustrates how the aims and concerns of public register provisions and freedom of information can diverge. Public registers do have purposes, and the fact that the bodies administering public registers resist bulk requests is a good indicator that the requests fall outside the public registers' purposes. Yet these purposes and concerns will not necessarily be recognised or upheld by freedom of information legislation.

A way forward
"Irrespective of the prevailing legislation ... more weight should have been given to the purpose of the collection of the information and its commercial value." 5

 
In looking for a way through the arguments surrounding bulk release of public register information, I am drawn inexorably back to the purposes for having public registers in the first place.

If the purpose of a register is clearly stated and release of information is limited to that and consistent purposes, many of the problems and concerns would simply vanish. This is not to say that defining the purposes will always be easy, particularly with long-standing registers. However, as registers come up for review, it would be worth considering whether they have a clearly stated purpose, or whether one could feasibly be imposed.

It is probably best to deal with this on a case by case basis, so that each public register has a clearly defined purpose and level of availability. Because the purposes may differ between registers, I think it would be very difficult, and probably unsatisfactory, to deal with the issues in a blanket way. However, it does mean that the solution may be many years in the coming, particularly for registers which are comparatively new.

I believe the time has come to reassess the appropriateness of freedom of information legislation's intervention in public registers, particularly if the overall solution will take some years. Issues relevant to any assessment include:

• the strong public feeling against the use of public register information for direct marketing and other similar commercial purposes;
• the apparent unease many public register administrators have with making the information available to people wanting it for these purposes;
• the unfairness of having to provide information for certain purposes and finding it can leave one open to unwanted contact from commercial operators;
• the apparent lack of a connection between the reasons for having the public register and commercial operators' reasons for requesting it;
• the fact that economic information aggregated or collated in respect of general locations can be gathered and disseminated (and that covering non-natural persons can be similarly dealt with) without let or hindrance.

I support open government and the aims of freedom of information legislation, but the current use of it to upset any balance established in the public register provisions in particular statutes and under the public register privacy principles is undesirable. The use of freedom of information to force bulk release of public register information is out of step with the privacy climate in New Zealand, is unpopular with individuals and many of the agencies administering public registers and does not, in my view, contribute towards the purposes of freedom of information.

I favour clarification of the law to exclude public register provisions from the ambit of freedom of information legislation, or at least to limit the use of the legislation to force bulk release of public register information.

B H Slane
Privacy Commissioner

Footnotes:
1.Information and Privacy Commissioner of British Columbia, An investigation concerning the disclosure of personal information through public property registries, Investigation Report P98-011 March 31, 1998, at 3.
2.Ibid.
3.Local Government New Zealand, submission to the Privacy Commissioner S51, reprinted in Review of the Privacy Act 1993: Public Submissions, vol III (Auckland: 1998).
4.Murphy, Geraldine "What do you mean they're allowed to?!", address to Privacy Issues Forum, Wellington, 2 September 1998, at 1.
5.Dunedin City Council in Local Government New Zealand, submission to the Privacy Commissioner (S51), reprinted in Review of the Privacy Act 1993: Public register submissions (Auckland: 1998).