The Human Rights Review Tribunal recently found that the Parole Board breached the Privacy Act when it disclosed an offender’s parole address, with tragic consequences.

Read the full decision: Tapiki and Eru v New Zealand Parole Board [2019] NZHRRT 5 (external link)

The Board agreed to release the offender from prison in large part because his mother, Ms Tapiki, committed to giving her son a fresh start. Ms Tapiki and her friend Ms Eru put careful thought and preparation into a plan to give the offender “a real chance for reintegration into the community and the best possible opportunity for a positive future,” according to the Tribunal decision.

As part of the plan, Ms Tapiki gave up her small flat and Ms Eru agreed to have the offender and Ms Tapiki live with her. A probation officer assessed and approved Ms Eru’s address and the Parole Board made living there a condition of the offender’s release.

The Board disclosed the offender’s release conditions to his victim, as the Parole Act requires. It redacted some information identifying Ms Tapiki, but it didn’t redact the parole address.

After the disclosure, Ms Tapiki and Ms Eru started receiving threats and somebody smashed their letterbox. The Department of Corrections had to move the offender to another town, where he had no support system. He later took his own life.

The Tribunal found that the Board had breached principle 11 by disclosing the parole address. The breach led to significant injury to Ms Tapiki and Ms Eru’s feelings, making it an interference with their privacy. The Tribunal awarded damages of $16,000 to Ms Tapiki and $12,000 to Ms Eru.

Testing the relationship between the Parole and Privacy Acts

When considering the parties’ cases and making its decision, the Tribunal looked at the extent to which the Parole Act overrides the Privacy Act.

The plaintiffs’ case

Ms Tapiki and Ms Eru claimed that disclosing the address breached principle 11 of the Privacy Act. Principle 11 prevents agencies from sharing personal information unless an exception applies.

The Parole Board’s arguments

The Board admitted that it should have redacted the address but argued that principle 11 didn’t apply in this case as per section 7(1) of the Privacy Act. Under section 7(1), nothing in principle 11 overrides other laws that allow or require an agency to share personal information.

The Board argued that section 50 of the Parole Act enabled it to share the information. Section 50(1) requires the Board to disclose offenders’ release conditions to victims. Section 50(2) lets it withhold information that would interfere with another person's privacy. The Board claimed that these provisions overrode its obligations under principle 11 when disclosing offenders’ release conditions.

Applying the Privacy Act to the Parole Act

The Tribunal emphasised that the Board must apply sections 50(1) and 50(2) of the Parole Act together. This means the Board has “a duty to advise except where disclosing the condition would unduly interfere with the privacy of any other person.” It also noted that section 108(3) states that the Parole Board is subject to the Privacy Act.

The Tribunal’s interpretation of section 7(1) of the Privacy Act was that principle 11 still applies under other laws up to the point where it would lessen or impair those other laws.

The Tribunal found that, since the Parole Board didn’t exercise section 50(2) of the Parole Act, section 50(1) didn’t apply either. Therefore, privacy principle 11 governed the disclosure. This doesn’t lessen or impair section 50, because section 50 requires the Board to consider the privacy interests of other people.

Not applying principle 11 in cases where the Board ignores its section 50(2) obligations would leave a privacy protection “vacuum.” The Tribunal said that the way to avoid this is to recognise “that the intended effect of s 108(3) of the Parole Act and of s 7(1) of the Privacy Act is to ensure IPP 11 applies in all circumstances.” Specific provisions that authorise or require the Board to share personal information only override principle 11 when the Board actually applies them.

Image credit: 'Parole' by Nick Youngson CC BY-SA 3.0 ImageCreator

Human Rights Review Tribunal, information sharing, IPP11 - disclosure, law enforcement, breach