The Human Rights Review Tribunal [2020 HRRT 16] awarded $50,000 to an ACC claimant after it was found to have breached the Privacy Act by destroying his file.

In its decision, the Tribunal said ACC breached the information privacy principles 5 and 6 of the Act. Principle 5 governs the way personal information is stored by an agency. Principle 6 gives individuals the right to access information about themselves.

Historic back injuries

The claimant worked in the boat building industry. He suffered injuries to his back in 1982, 1985 and 2002. As a result of these injuries, he was from time to time in dispute with ACC over issues including cover, payments and whether his vocational independence had been properly assessed.

In 2006, he decided he needed professional advice about his ACC entitlements and hired a lawyer specialising in ACC claims to check whether he had received his proper entitlements and back-dated employment-related compensation.

The lawyer advised him that he could be entitled to more compensation as his claim would go back to the 1980s when he suffered his first injuries.

The lawyer requested a copy of his client’s 1985 file from ACC but was told by the agency that it had been destroyed and no information from it could be provided. But in 2015, the claimant learned by chance from an ACC officer that information about his weekly compensation payments for the 1985 injury were still held by the agency. The records showed that he had received minimum earnings-related compensation on his 1985 claim.

He then made a complaint to the Privacy Commissioner because ACC had not fulfilled his principle 6 request for his original file, and it had not given him his earnings-related compensation record.

After an investigation by the Office of the Privacy Commissioner, the claimant took his case to the Human Rights Review Tribunal.

Principle 5

Principle 5 of the Privacy Act says an agency that holds personal information shall ensure that the information is protected from loss or misuse.

ACC said the 1985 file was destroyed in 2001 or 2002 in line with its document retention policy of the time.

ACC argued that principle 5 applied only to the unintentional destruction files and that there was no breach of the Act.

The Tribunal disagreed. It said restricting principle 5 to accidental, unintended or fortuitous loss was too narrow a reading. Principle 5 was intended to also protect against destruction that was well-motivated but intentional. 

It said ACC must be the default primary holder of relevant information because claimants cannot reasonably be expected to retain medical reports and claim and payment histories over the length of their lives.   

The Tribunal said the documents in the claimant’s 1985 physical file would have included the claim for cover, medical reports obtained by ACC, medical certificates certifying him as unfit for work, calculations of his earnings-related compensation, any decision letters, file notes on conversations with the claimant and so on. This information would be essential to both the claimant and ACC over his lifetime, given the complexity of his claim.

The Tribunal reviewed medical evidence that showed the 1982 and 1985 accidents had led to progressive degeneration in his ability to live and work. But without the file, it was impossible to tell if he had received his correct entitlements.  

The Tribunal found there had been a breach of principle 5 because when ACC destroyed the physical file, the purpose for which the information had been collected had not been spent. By intentionally destroying the file without taking into account the progressive degenerative changes being experienced by the claimant and the likelihood that both he and ACC would need to have continued reference to the contents of the file meant the information was not protected by security safeguards which were reasonable to expect in the circumstances.

Principle 6

Principle 6 of the Act says where an agency holds personal information in such a way that it can be readily retrieved, an individual is entitled to have access to that information.

ACC admitted to the Tribunal that it had breached principle 6. The weekly compensation payments on the 1985 claim were in its system and should have been provided back in 2006.

The agency apologised to the claimant, saying it was human error. It offered to pay him $15,000 for humiliation, loss of dignity and injury to his feelings, and $5000 as a contribution towards the cost of his legal advice.

Remedy

The Tribunal concluded ACC had breached principles 5 and 6 of the Privacy Act and interfered with the claimant’s privacy.

It was satisfied the principle 5 breach had caused him harm as listed in section 66(1)(b)(i)(ii) and (iii) of the Act because it:

• Has caused, or may cause, loss, detriment, damage, or injury to that individual; or
• Has adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual; or
• Has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.

ACC accepted it had breached principle 6 and offered other mitigating factors:

• It had issued an apology to the claimant
• It was still open to him seeking legal advice on and to make an application for backdated weekly compensation
• Since becoming aware of the breach, ACC had taken steps to minimise further harm to him – arranging for and funding formal mediation and funding his legal representation in that mediation.

The Tribunal said these factors did not sufficiently account for the extraordinarily long time it took ACC to accept the principle 6 breach. The information was requested in 2006, but it took ACC until 2018 to acknowledge it had the information. The belated acknowledgement of the breach by ACC therefore carried little weight.

On the issue of the apology, the Tribunal referred to its 2017 decision Williams v ACC [NZHRRT 26] which said: “The apology cannot erase the humiliation, loss of dignity or injury to feelings caused by the interference with privacy. Nor is it a get out of jail free card.”

The Tribunal noted the delay between the failure to comply with principle 6 and the apology was 12 years. “The injury to the feelings of the claimant have in no way been ameliorated. Too much has gone on for too long for the apologies to have a measurable consequence in the context of the assessment of remedies.”

It also noted the matter of further action by him would be at a high personal cost after he gave evidence he was emotionally and physically drained from his 13-year struggle. He told the Tribunal: “I have lived in my past with too many unpleasant memories for such a long time that I now want to move on.”

Under section 85 of the Act, the Tribunal has the power to grant one or more of the remedies, including damages. In deciding what remedies to grant, it needed to consider ACC’s conduct.

The Tribunal concluded there were no mitigating factors in favour of ACC.

Damages

The Tribunal awarded damages of $40,000 against ACC under sections 85(1)(c) and 88(1)(c) for injury to his feelings.

It awarded damages of $5,000 against ACC under sections 85(1)(c) and 88(1)(b) of the Privacy Act for the loss of benefit that he might reasonably have been expected to obtain but for the interference.

It also awarded $5,000 against ACC under sections 85(1)(d) and (e) as a contribution towards the cost of his legal advice on his entitlement to backdated weekly compensation on his 1985 claim.

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Human Rights Review Tribunal