A chiropractor being investigated by ACC made numerous requests for information about the investigation. When ACC withheld some of the information, he complained to the Privacy Commissioner, and then took his case to the Human Rights Review Tribunal.

Dr L is a chiropractor and acupuncturist from the United States who moved to New Zealand in 2009. He opened a clinic in Tauranga in 2010. After closing that business, he opened another clinic in Wellington in 2013.

In 2011, ACC began an investigation into Dr L’s business to determine whether a number of ACC claims submitted by him were genuine. ACC had concerns over the possible duplication of claims and other issues.

Requests to ACC

To find out more about the allegations against him, Dr L made a large number of requests to ACC for information under both the Privacy Act and the Official Information Act. He hoped that if he found out what was behind the investigation, he would be able to correct what he believed was misinformation held by ACC.

However, after ACC discontinued its investigation in 2014, it decided to give Dr L almost all the information previously withheld from him. But it withheld information about:

• ACC’s investigative techniques and the names of the informants; and
• information that would involve the unwarranted disclosure of the affairs of other people.

The Tribunal

The Human Rights Review Tribunal recently published its decision on Dr L’s Privacy Act complaints. The complaint centred on information privacy principle 6 of the Privacy Act which gives individuals the right to request their personal information from an agency.   

When the case went before the Tribunal, both parties initially could not agree on what the Tribunal was there to decide. Dr L wanted any and every one of ACC’s withholding decisions leading up to the eventual release of his information reviewed by the Tribunal. He also wanted the Tribunal to review whether ACC acted properly during its entire investigation.

On the other hand, ACC said the only issue the Tribunal needed to decide was whether ACC was right to withhold a list of clients spoken to by the agency during its investigation, because it had already released almost all the previously withheld information.

The Tribunal decided that the core of the case lay in whether ACC had properly continued to withhold the two restricted types of information. The issue was whether, when releasing the information it had previously withheld, ACC was right to hold on to some information. That information related to its investigative techniques, and information which would involve the affairs of other persons.

Duty to investigate

In its decision, the Tribunal said ACC, like other agencies that spend public money, had a duty to prevent, investigate and detect offences concerning its payments. To be able to carry out this duty, ACC must encourage members of the public to provide relevant information. The detection and investigation of fraud is particularly reliant on public information.

The Tribunal said the Privacy Act’s maintenance of the law reasons for withholding information specifically concerning the “prevention, investigation and detection of offences” were justified when related to its investigative techniques.

The Tribunal said ACC’s use of section 27(1)(c) of the Act in this case was proper - “that is, the information relates to ACC’s investigative techniques and methodologies and includes the names of confidential informants”.

Affairs of another

On the second withholding ground - the unwarranted disclosure of the affairs of another individual - the Tribunal said it was clear the information did indeed contain the names and contact details of people who provided information to the ACC investigators, including employees and patients.

“The salient point is that information about Dr L was provided to ACC by a range of persons, but particularly by those working with him and by patients. It is clear from what we have seen and heard the information was provided in expectation the identity of the informants would be withheld from Dr L.”

The Tribunal concluded the disclosure of the information about the identities of informants and others would have been unwarranted. The information had little direct relevance to the issue between Dr L and ACC. It added there was a real risk the information would be misused, including being published on the internet.  

The Tribunals said ACC had properly withheld the information and dismissed Dr L’s claim.

Image credit: Creative Commons via Pixabay.

Human Rights Review Tribunal, health, ACC, IPP6 - access