People have been asking us recently: “If I make a complaint- can I stay anonymous? Can’t the Privacy Commissioner step into my shoes and keep my identity secret and out of the action? Does the agency or person need to know I’ve complained about them at all?” The answer is that they probably do need to know who you are and exactly what you’ve complained about. The reason is natural justice. 

I’ll be clear this caveat only applies to the part 8 complaint process though - and I’ll explain why later in this post.

Natural justice

In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem).

In New Zealand, natural justice is upheld in the NZ Bill of Rights Act 1990, particularly section 27:

Section 27(1) affirms common law principles and the requirement for decision-makers to act fairly or reasonably. Essentially, the right requires decision-makers to hear both sides of the argument. It also requires decision-makers to be impartial.

Section 27(2) serves to ensure that a person may challenge the lawfulness of any decision that affects him or her.

Section 27(3) precludes the Crown from having any procedural advantage in legal proceedings between it and any person.

Every person has the right to have the principles of natural justice observed by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

The Privacy Commissioner’s proceedings are privileged. But if you want us to investigate the thing you say has caused you harm, we do need to tell the agency about your complaint, and give them sufficient details to be able to respond and give their side. This is set out in section 73 of the Privacy Act 1993. 

The information we will give the agency will likely include your name, date of birth, and address. A big part of this is to ensure that you are not mixed up with someone else.

If you complain to another agency, they may have different rules about what they will tell the person you have complained about, but they will probably have to tell them something, and likely quite a bit.

Other agencies

Agencies like the Health and Disability Commissioner, Office of the Ombudsman, Banking Ombudsman Scheme  or Office of the Electricity and Gas Complaints Commissioner will all have different internal policies about what they will tell the agency you’re unhappy with. You should check with them when you make a complaint or enquiry about how much of your information they need to give the agency you are complaining about.

Another consideration is principle 11 of the Privacy Act. Principle 11 says that an agency shouldn’t disclose the personal information it holds unless one of the exceptions applies. Some of the reasons they might disclose personal information include:

• Disclosure is one of the reasons they collected the information (this might cover the situation where you have made a complaint to a regulatory body who didn’t have your details before);
• The source of the information is publically available (although they have to have gotten your information from a public place in the first place - like the White Pages);
• The disclosure is authorised by the individual concerned (if you complain to us, we will assume you want us to tell the agency you’ve complained and try to help you sort it out);
• Disclosure is necessary to avoid prejudice to the maintenance of the law;
• The disclosure is necessary to prevent a serious threat; or
• The disclosure won’t identify the individual.

The situation doesn’t change where you are using an advocate or a lawyer to help you either. That person doesn’t step into your shoes because they are only supporting you as the complainant.

It’s important for you to find out what will happen to your information after you make a complaint. For example, if there is a really good reason the person you are complaining about shouldn’t know where you live, you should make that really clear from the beginning.

When can I remain anonymous?

As privacy regulator, people can tell us things, blow the whistle on bad practices or draw our attention to dodgy practices. Sometimes we may choose to act on these, whether by undertaking a Commissioner-initiated investigation, or simply by letting the agency know that we think they might have a problem, and that we are happy to help them comply.

We are happy to receive anonymous notifications in the public interest. Where we receive this kind of communication, we generally won’t be able to report back to the individual who notified us or tell them what the outcome was.

If you want to report serious wrongdoing in your own workplace, there is further information on ‘protected disclosures’ here.

Image credit: Alexander Poskorkov via Pexels.

IPP11 - disclosure, complaints