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Holmes vs Housing New Zealand Charles Mabbett
14 August 2015

housing

A Housing New Zealand tenant who found himself in a bureaucratic limbo when he complained to several agencies about a noisy neighbour has been awarded $400 damages.

Fed up with the noise from a neighbouring apartment in March 2012, the man complained to Housing NZ, Police and the Dunedin City Council. But he was told by Housing NZ and the Dunedin City Council that the matter was the responsibility of the other agency.

Housing NZ said noise complaints were the responsibility of the Dunedin City Council which in turn said it didn’t investigate noise complaints if the tenants had the same landlord – in this case, Housing NZ.

To further complicate matters, the man was also informed by Housing NZ that it would not take any action because it had not been able to establish that Mr Holmes had called the Dunedin City Council as he had claimed.

The man then began a quest to hold the right agency to account.

He wrote to the regional manager of Housing NZ requesting a recording of his calls to the agency’s 0800 number, together with all records of his calls, as well as the action taken by Housing NZ regarding those calls.

Mr Holmes believed these recordings would show he had made a complaint about noise to the Dunedin City Council and that the complaint had been to no avail.

But Housing NZ said it did not receive the letter asking for the recordings or transcripts of the recordings. This became the issue at the heart of this dispute before the Human Rights Review Tribunal. The Tribunal had to establish on the balance of probabilities whether Mr Holmes had sent the letter and whether Housing NZ had received it.

Information Privacy Principle 6 of the Privacy Act establishes an entitlement to personal information. Where an agency holds personal information in such a way it can be readily retrieved, an individual is entitled to obtain from the agency confirmation of whether or not the agency holds such personal information; and to have access to that information.

In making a decision on whether a request is to be granted, an agency must do so “as soon as reasonably practicable” and in any case not later than 20 working days after the day on which the request is received by that agency.

In its decision, the Tribunal said it was satisfied, based on Mr Holmes’ evidence, that he had sent the letter – dated 27 March 2012 – and that it had been received. It was not the responsibility of Mr Holmes if Housing NZ had lost or mislaid the letter.

“Mr Holmes’ account of his posting of the letter and subsequent call to the call centre is consistent with his almost obsessive preoccupation of ensuring all his dealings with officialdom are clearly documented, including the obtaining of a confirmation of receipt for all documents supplied by him,” the Tribunal said.

If no decision is made within the statutory 20 day working period of an access request, then there would be an interference with Mr Holmes’ privacy as defined in section 66 of the Privacy Act.

Mr Holmes sought damages of $20,000 for humiliation, loss of dignity or injury to feelings. In a statement to the Tribunal, he described the figure as “conservative”. The Tribunal did not accept that Mr Holmes had experienced consequences of the gravity necessary to justify such a high award. Instead it valued the extent of his damage at a more modest $400.

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