1 Feb 2010, 09:00

A man made a request to the New Zealand Security Intelligence Service ('the Service') under principle 6 of the Privacy Act for a copy of information held by the Service about him. The Service responded to the man's request by neither confirming nor denying that it held information about the man, and therefore relying on section 32 of the Privacy Act.

Principle 6 of the Privacy Act provides that where any agency holds personal information in such a way that it can be readily retrieved, the individual concerned shall be entitled to have access to that information. Principle 6 is subject to sections 27 to 29 that provide a range of withholding grounds an agency can rely on to withhold information from individuals.

Principle 6 is also subject to the provisions contained within section 32 of the Privacy Act. Section 32 provides:

Where a request made pursuant to principle 6 relates to information to which section 27 or section 28 of this Act applies, or would, if it existed, apply, the agency dealing with the request may, if it is satisfied that the interest protected by section 27 or section 28 of this Act would be likely to be prejudiced by the disclosure of the existence or non-existence of such information, give notice in writing to the applicant that it neither confirms nor denies the existence or non-existence of that information.

The Privacy Act does not provide for a right of redress against the Service in the Human Rights Review Tribunal as would apply in complaints against other agencies. As a last point of review, the Privacy Commissioner carefully scrutinises the Service's decision making in this regard.

As a result of discussions and correspondence with the Service we were satisfied that the Service had a proper basis for its decision to give notice under section 32 of the Privacy Act.

Section 32 enables the Service to uphold the integrity of its intelligence gathering function, which relies on discretion and the keeping of confidences. Section 32 allows that work to continue by allowing the Service to be consistent in responses to both subjects of interest and subjects of no interest when requests for information are made to it.

This consistent response reduces the Service's susceptibility to orchestrated requests for information and any prejudice to security by disclosing what the Service does and does not know. This fits with the prospective nature of the Service's investigations and its need to preserve its position.

We conveyed this view to the man and also made it clear that our view did not confirm whether information was held about him or not, it simply confirmed that we considered that section 32 had been applied correctly and that we agreed with its application in the circumstances. We also reiterated that the Service's actions had been independently reviewed by our Office.

As a result, we closed our file.

December 2010

Access to personal information - New Zealand Security Intelligence Service - neither confirm nor deny - Privacy Act 1993, principle 6; section 32