Charging for information is a subject that comes up in complaints made to us from time to time.
The Privacy Act gives people the right to see their own information that agencies hold about them, but it also gives private sector agencies the right to impose a reasonable charge for providing that information. This right does not apply to public sector agencies – sorry, government agencies, you’re out of luck on this front.
When you do charge for information, you need to be reasonable. Of course, “reasonable” is often in the eye of the beholder, so we’ve put together an informal guide.
Most information should be free
The spirit of the Privacy Act is to give people open access to their own information. This means there should be as few barriers as possible – including price. In most cases, you should not charge anything to provide people with their own information. Charges should be the exception, not the rule.
Only charge for providing information
One area where people get a bit unstuck is in the difference between charging to provide information and charging to assess information.
There are a few exceptions to the right to see personal information. For example, information may disclose private details about somebody else, or releasing the information may put the requestor's health at risk. In order to determine whether an exception applies, you may need to look at information and make a judgement call. This can be time-consuming, but you cannot charge people for the time you spent doing so.
You can charge people reasonable costs to provide information, to cover things like staff time going through files, photocopying and postage.
The Ministry of Justice has published charging guidelines for handling Official Information Act requests. These guidelines can be a useful tool for Privacy Act requests as well:
These may be helpful to determine what is reasonable, but they are not the final word. We assess each situation based on its individual facts. We also have the power to make a binding determination about how much you can charge.
Finally, it’s worth noting that the Human Rights Review Tribunal has taken a dim view towards excessive charges for personal information. One example of this is from 2015, when a lawyer tried to charge an ex-client several hundred dollars to see his information. The lawyer’s rationale was that it would take a few hours to retrieve the information, and his charge-out rate was a couple hundred dollars an hour, so it followed that his ex-client should compensate him at that rate.
This Tribunal did not accept this reasoning, and ultimately made the lawyer pay his ex-client more than $10,000. It also made him release the information in question – free of charge.
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