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Hand it over or face the music Sarah Thompson
11 December 2014

robin hood edit

Over the last few months we’ve talked about how our Office is trying to provide more effective and efficient responses when we investigate complaints by taking a practical approach to dispute resolution -  including trying to talk with people more and calling compulsory conferences where appropriate.

That said, the bulk of our complaint work - about 60 percent - relates to complaints where we have been asked to review an agency’s decision to withhold personal information. In case you don’t already know, under the Privacy Act, individuals are entitled to request a copy of any personal information an agency holds about them.

This is not an absolute right, as an agency can withhold personal information in limited circumstances, but if it withholds personal information, the individual is entitled to have us review that decision.

A key requirement to us reviewing a decision to withhold information is that we need to see a copy of the information in question (although there will obviously be the odd case where this just isn’t possible – for instance because the agency no longer holds the information that has been requested).

But all too frequently we have issues with agencies who are reluctant to hand the information over to us to review, for any number of reasons. They might believe the information is covered by some sort of privilege, or they don’t have time to collate the information, and other reasons.

While we understand that some agencies will have genuine concerns about providing us with information to review and are always happy to talk about this with them, the simple fact is that it’s necessary for us to be able to see this information to do our job and, as such, we have the power to order this information is provided to us.

Under section 91 of the Privacy Act, we can require any individual provide any information we consider is necessary for us to look at as part of a complaint investigation. This includes asking to be provided with personal information for review where it’s being withheld, regardless of whether that information is privileged or subject to any other confidentiality.

You don’t just have to take my word for it though - this is a matter which has been all the way to the Supreme Court (see William Patrick Jeffries v The Privacy Commissioner). In that case, a lawyer didn’t want to provide us with information because it was legally privileged. The Supreme Court said this information must be provided to our Office, if we request it under section 91.

If you or your agency receives a letter from us requesting information so we can review it and the letter refers to section 91, then providing this information is not optional. If we don’t receive the requested information, we can consider enforcement action – such as prosecution.

If you are dealing with us on a complaint and you’ve got any questions or concerns, you should always feel free to get in touch with us to discuss these further. But there is simply no good excuse for failing to comply when we request information as part of an investigation.

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Comments

  • What is the music that is to be faced? Is there any?

    Perhaps part of the issue is that the OPC does not push the non-compliance issue hard with either those who fail to provide the requested information or government policy makers to put enforceable and punitive options at the OPC's disposal?

    In the wake of the Canterbury earthquakes interactions with insurance companies so often foundered on insurance employees (or employees of other agenices) pleading ignorance of their obligations and scornful of references to the Privacy Act or the OPC. However that may be, irrespective of specific times and circumstances, there is a strong tendency to hold back information that may not reflect well on an organisation, its employees or contractors

    Where a situation has become adversarial, and there is a massive power imbalance which might be upset by the disclosure of information, talking heads are unlikely to make timely progress. Remember, the person seeking the information is quite likely to be under time pressure and delay is just as useful a tactic as denial. Until the OPC can ensure information that should be released is made available promptly it is not fulfilling its obligations.

    Posted by Lawrence Roberts, 05/01/2015 3:31pm (3 years ago)

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