Privacy Commissioner - Te Mana Matapono Matatapu

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Harm to people under 16

This section is not used often, but where it is used, this is generally when parents or caregivers ask for access to health information about children.

Parents have certain rights, as representatives of their children, to ask health agencies to disclose information about children under the age of 16. These are important rights. Parents generally need to know what is happening with their children's health.

However, very occasionally, it may actually be detrimental to the child if the agency gives out the information to a representative who is asking for it.

In cases involving non-health information - for instance, school information - parents also have rights as guardians of their children to access certain types of information. Often the Official Information Act applies, rather than the Privacy Act.  Whichever Act applies, though, agencies can withhold information in situations where providing the information could cause harm to the child.

• How likely does it have to be that the child will suffer if the information is released?
• Section 29(1)(d) refers to the "interests" of the child.  Is this the same as "best interests"?
• When will it be against a child's best interests to give a representative the information?

How likely does it have to be that the child will suffer if the information is released?
The agency must be satisfied that the disclosure of information is more likely than not to be contrary to the child's interest. 

Section 29(1)(d) refers to the "interests" of the child. Is this the same as "best interests"?
This is slightly unclear. New Zealand has international obligations under the UN Convention on the Rights of the Child to give primary consideration to the "best interests" of children in all actions concerning children, whether in the public or private sector. In O v N (see download below), the Tribunal suggested that "interests" could be interpreted in line with this international obligation to mean "best interests". However, it left the issue open.

When will it be against a child's best interests to give a representative the information?
Examples of when a child might be harmed by giving out information about them include the following:

• Suppose it is necessary for the child to have access to confidential support facilities, so that they can be healthy and safe. This can include counselling services, sexual health services, or other health facilities. If breaching the child's trust may result in them being unwilling to use those facilities in future, the agency may be able to refuse to release information to the requester. Agencies should encourage children wherever possible though to share the information themselves with caring adults.

References

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

(d) In the case of an individual under the age of 16, the disclosure of that information would be contrary to that individual's interests; 

HRRT/Court Cases: