Privacy Commissioner - Te Mana Matapono Matatapu

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Electoral Amendment Bill (No 2) 2001

Report by the Privacy Commissioner to the Minister of Justice in relation to Electoral Amendment Bill (No 2) 2001

ELECTORAL AMENDMENT BILL (NO 2) 2001

1.

Introduction
1.1 Electoral processes involve the collection of personal information about virtually every adult in New Zealand and its retention in a massive database (the electoral roll). Creation and updating of this database is a sophisticated undertaking. The information is put to use every three years for general elections and at other times for referenda. It also forms the basis of rolls created for local authority elections. There are various processes to add or remove information to or from the electoral roll such as re-enrolment exercises, the Maori option, and information matching against the list of overstayers. The roll is made available in electronic form to registered political parties and candidates and is also reformated into the habitation index which can be searched by address. The roll and habitation index are made available for sale. In addition, the electoral roll is also made available for certain secondary purposes such as authorised research and for compiling jury lists.
1.2 It will be unsurprising that there are a host of privacy issues involved with electoral law and administration and with any significant proposal to change the law. I reported on a number of these issues in a report in 19971. In this report I highlight a few privacy issues raised by this bill and in some cases recommend amendment.
1.3 This bill will establish several major new information matching programmes to identify eligible persons who appear not to have enrolled to vote.2 In accordance with sections 13(1)(f) and 98 of the Privacy Act, I am examining the proposed new programmes. My staff have been working closely with the Electoral Enrolment Centre for some months and the EEC is in the course of finalising information matching privacy impact assessments. Unfortunately, these are not yet to hand. A separate report will be prepared and submitted as soon as possible in relation to proposed section 263B.

2. Clause 22 - New sections 111A to 111C inserted
2.1 Clause 22 inserts new sections 111A-111C. The provisions establish a process to enable ethnicity information which has been collected for electoral purposes to be put to unrelated secondary purposes.
2.2 Electoral enrolment information is primarily collected to enable elections to be held. The information is collected using the statutory powers of the State and it is compulsory to enrol. Included amongst other sensitive information, in some cases, are details of a person's Maori ethnicity. Very great care has to be taken if any secondary use of electoral information, especially that involving ethnicity, is to be allowed.
2.3 In my opinion, the Electoral Act should not enable electoral information to be used for secondary purposes unless there is an important and clearly identified public interest in doing so and there is no reasonable alternative. If a case is made out for a secondary use of electoral information, the disclosure and use of that information should be subject to strong controls. The disclosure should be of the minimum information necessary to achieve the secondary purpose.
2.4 I accept that there is a public interest in communicating with Maori electors to assist in the creation of registers of iwi affiliation. I also accept that there is a lack of reasonable alternatives to the use of electoral information to achieve that purpose. In my view, the objective can be achieved without direct disclosure of electoral information to any "designated body" and with minimal legislative change. Essentially, the law need only authorise the EEC to undertake a mail-out inviting recipients to get in touch with the designated body if they wish to have their details placed on the register. Thereafter EEC would no longer be involved in any dealings in relation to the iwi registration processes and individuals would not be obliged to participate. No direct disclosure of electoral details need be made.
2.5 I am not convinced that such a public interest exists in respect of the proposal to allow the designated body to have ongoing access to electoral information and processes. The bill as drafted would essentially create the EEC as a publicly funded statutory address and updating service for a private body. The bill even anticipates the unique identifier assigned by the EEC, a number of some sensitivity because its use in relation to virtually the entire adult population, being integrated into the updating processes for the benefit of the designated bodies.
2.6 In my opinion, the designated body should be responsible for maintaining and updating its own records. To pass this role to the EEC will blur the statutory tasks beyond that which is necessary to give the designated body the helping hand to establish the registers. Once an individual has asked to be added to the register that person then has a one-to-one relationship with the designated body. Thereafter the designated body should deal directly with individuals, as anticipated by information privacy principle 2, and this would include having individuals notify changes of address in the normal way.
2.7 It would be open for the designated body to utilise commercially available database updating services which would not involve the statutory authorisation or privileged access to electoral information. If the designated body wishes to avail itself of the service, it could match the database against that maintained by NZ Post in relation to address change information. The designated body would need to undertake this in the normal commercial way rather than by having the process and costs integrated into electoral processes.
2.8 If this approach is adopted the bill will need to expressly authorise the EEC to use relevant electoral information for the purpose of communicating with Maori electors to advise them of the existence of the registration processes maintained by the designated body. This will involve a major mail-out enclosing necessary details and brochures to all those currently enrolled who have declared their Maori descent. (This can be done in a suitable way to facilitate response, for instance by a pre-paid return coupon including the person's pre-printed details addressed for return by the individual to the designated body.) Similar mail-outs to each person who newly enrols declaring their Maori descent for electoral purposes would also be allowed. None of this requires an electronic or other transmission of personal information directly from the EEC to the designated body.
2.9 A suitable amendment to the bill to replace section 111A and 111B follows:
111A The Cheif Registrar may communicate with Maori electors about register of iwi afflications
(1)

 
(2) TheCheif Registrar may from time to time communicate with Maori electors to inform them of:
(a)any designated body maintaining a register of iwi affiliations; and
(b) the opportunity to register with the designated body.
For this purpose and section 111C:
Maori elector means a person registered as an elector who has given written notice to a Registrar that the person is of Maori descent;
register of iwi affiliations means a register which includes a list of persons of Maori descent and details of their iwi affiliations.

3. Clause 53 - New section 211 substituted
3.1 Clause 53 repeals sections 211 and 212 and substitutes a new consolidated section 211. Sections 211 and 212 are public register provisions for the purposes of the Privacy Act.3 I suggest some minor technical amendments
Charging
3.2 The section requires returns of electoral expenses to be available for public inspection. I have no concern about the substance of the provision but question one minor aspect of the drafting. In both subsections (2) and (5) there is reference to inspection of the returns "on payment of any charges that may be made under the Official Information Act 1982." I suggest that the phrase be replaced by "subject to payment of any charge as may be prescribed by regulations".
3.3 As section 211 is a public register provision, Returning Officers will be subject to Public Register Privacy Principle 4 which states:

"PRINCIPLE 4
Charging for access to public register
Personal information shall be made available from a public register for no charge or for no more than reasonable charge."

3.4 There is no need to refer to generally applicable law whether it be this principle or the Official Information Act. In any case, it would be most unusual under the Official Information Act for a charge to be made for simple "inspection" of documents. Typically charging only arises under that Act for substantial staff or copying costs. Charges are sometimes made for inspecting public registers, especially where fees are designed to fund the maintenance of the register - which is hardly relevant here.
3.5 In my view the register should be open for inspection free of charge but that a charge should be allowed if a copy of an entry is requested. To ensure nationwide consistency charges could be set by regulation.
Repeal of section 212 - consequent amendment
3.6 With the repeal of section 212 of the Electoral Act, a corresponding amendment should be made to the Second Schedule of the Privacy Act to omit reference to that section.

4. Clause 54 - New section 263B inserted
4.1 Clause 54 inserts a new section 263B providing for the disclosure of personal information for the purposes of several new authorised information matching programmes.4 I am currently examining that provision under section 13(1)(f) of the Privacy Act and taking into account the information matching guidelines set out in section 98 of that Act. To enable me to complete that task I have asked for the Electoral Enrolment Centre to submit an information matching privacy impact assessment (IMPIA) in relation to each new programme. I am awaiting completed IMPIAs although my staff and the EEC have worked through a number of issues in detail already. I will submit a further report as soon as possible.

5. Summary of recommendations
I make the following recommendations:
1. Proposed sections 111A and 111B should be revoked and replaced with the following section:
111A The Chief Registrar may communicate with Maori electors about register of iwi affiliations
(1) The Chief Registrar may from time to time communicate with Maori electors to inform them of:
(c) any designated body maintaining a register of iwi affiliations; and
(d) the opportunity to register with the designated body.
(2) For this purpose and section 111C:

.
Maori elector means a person registered as an elector who has given written notice to a Registrar that the person is of Maori descent;
register of iwi affiliations means a register which includes a list of persons of Maori descent and details of their iwi affiliations
2. In subsections (2) and (5) of proposed section 211 the phrase "on payment of any charges that may be made under the Official Information Act 1982" should be replaced by "subject to payment of any charge as may be prescribe by regulations" or "subject to any reasonable charge for providing copies of any entry on the register".
3. Consequent upon the repeal of section 212 of the Electoral Act, a corresponding amendment should be made to the Second Schedule of the Privacy Act to omit reference to that section.

B H Slane
Privacy Commissioner

11 May 2001

Footnotes
1 Report to the Minister of Justice on the Electoral Act 1993, April 1997. (back)
2 See clauses 55 (proposed new section 263B) and 58 and Schedule 4 (amendment to Privacy Act 1993). (back)
3 See Privacy Act 1993, Second Schedule, Part 1 (back)
4 See also clause 58 and Schedule 4 which amends section 97 and the Third Schedule of the Privacy Act to establish several new specified agencies and to list section 263B as an information matching provision. (back)