A recent Human Rights Review Tribunal decision has highlighted the importance of agencies complying with privacy principle 8 (the accuracy principle) and ensuring they take reasonable steps to ensure the information is accurate and up-to-date before they use it.

Principle 8 is relevant if a decision affecting an individual has been made on the basis of incomplete, outdated or inaccurate personal information. Information privacy principle 8 says that:

An agency that holds personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date, complete, relevant, and not misleading.

In the case of Williams v ACC, ACC had relied on a medical report based on an eight-month-old assessment without checking if Mr Williams had further injury or deterioration when deciding to cancel his weekly earnings-related compensation payments. 

After Mr Williams made a privacy complaint to ACC about the failure to comply with principle 8, ACC promptly reinstated the payments and made an apology for their non-deliberate breach of principle 8. Mr Williams has now been awarded $7,500 damages by the Tribunal for the emotional harm he had suffered as a result of this interference with his privacy.

ACC’s due process error

Due to injury, Mr Williams was receiving weekly earnings-related compensation payments. On 24 December 2014, ACC advised the payments would cease from 21 January 2015. In reaching this decision, ACC relied on a supplementary medical report provided by an occupational medicine specialist that included a proviso:

Unless there has been a further injury or a significant deterioration since I saw [Mr Williams] this would continue to be my opinion i.e. in my opinion he is capable of working in his pre-injury work role as truck driver.

But ACC did not check with Mr Williams if he had suffered any further injury or deterioration before deciding to cancel the payments. 

Mr Williams initially took the step of requesting review of the ACC decision but then opted to bring judicial review proceedings in the High Court, to try to have the decision overturned as soon as possible. He then became aware of information privacy principle 8.

Mr Williams wrote to ACC on 13 April 2015, drawing attention to the proviso in the supplementary medical report, and pointing out that had ACC sought up-to-date, accurate, complete and relevant medical information relating to his injury, he would have provided relevant additional and new information.

This complaint to ACC about breach of principle 8 resulted in a prompt same day acknowledgement, and just over a week later, on 22 April 2015, ACC advised the decision to cease his payments had been overturned in light of the acknowledged due process had not been followed when it made the 24 December 2014 decision. Mr Williams was advised his weekly compensation payments would be reinstated and backdated to January 2015. By 24 April 2015, ACC had acknowledged the breach of privacy principle 8 and provided a written apology.

But the apology was not adequate to fully resolve the matter for Mr Williams who sought monetary compensation for the error. Mr Williams complained to us but as we were unable to settle the matter to his satisfaction, he filed proceedings in the Human Rights Review Tribunal seeking $10,000.

Tribunal’s decision on causation and damages

As ACC accepted that there had been an interference with Mr Williams’ privacy, the Tribunal’s decision was about Mr Williams' claim for $10,000 damages. The Tribunal accepted the credibility of the witnesses and observed that Mr Williams impressed as a reserved, quiet and private individual and, while he had a limited ability to speak freely about himself, the Tribunal did not doubt that he had experienced the emotional harm of which he spoke.

While ACC’s apology to Mr Williams was both genuine and immediate, the Tribunal noted that an appropriate and timely apology can be relevant and may lessen the harm suffered to an individual. But the apology could not 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.

Accepting the apology was not sufficient to adequately compensate for the consequences of the interference with his privacy, the Tribunal was satisfied the nature and degree of emotional harm experienced by Mr Williams required an award of damages:

The circumstances of the case are consistent with and reinforce the claim by Mr Williams he experienced humiliation, loss of dignity and injury to feelings. The announcement by ACC that his compensation payments would terminate was received on Christmas Eve. Over the holiday period he was left to contemplate a precarious future and the severe consequences which would inevitably flow from the termination of the payments on 21 January 2015. He could hardly have been anything other than worried, nervous and fearful about his financial insecurity, his inability to meet basic living costs and his uncertain and unknown future. It is not surprising his relationship with his partner came under strain. In the New Year, as a person who had been in continuous employment for 45 years and who took pride in supporting himself and his family, he found himself at Work and Income applying for social welfare assistance. He similarly had to face his bank with an admission that he was no longer able to meet his financial commitments. His mortgage had to be rearranged and his credit card debt addressed. His anger, frustration, humiliation and feeling of powerlessness is understandable.

 

On the facts found, there is a clear causal connection between the termination of his compensation payments and his feelings of humiliation, loss of dignity and injury to feelings.

While accepting that Mr Williams’ claim for $10,000 was not extravagant, the Tribunal rejected the claim that ACC’s error had been deliberate. In the circumstances, including recognition of the speed, with which the interference was recognised, acknowledged and remedied by ACC, Mr Williams was awarded $7,500.

The case was contrasted with the award of $15,000 in an earlier case - Taylor v Orcon - where principle 8 was breached, resulting in more serious humiliation, loss of dignity and injury to feelings.

Here are some other examples involving a breach of principle 8:

• Case note 279069 [2016] NZ PrivCmr 12: Debt collector fails to check accuracy of information before use
• Case note 277483 [2017] NZ PrivCmr 3 - CYF wrongly noted father had sexual abuse convictions
• Case note 264435 [2015] NZ PrivCmr 8 – Immigration NZ refuses to correct birth date.

Image credit: American goldfinch via National Audobon Society.

ACC, Human Rights Review Tribunal