The High Court’s decision on the proceedings brought by Rt Hon Winston Peters for breach of privacy is a welcome and useful addition to the case law on the tort of privacy. It also gives some useful guidance on the “no surprises” principle – the guideline under which a chief executive informs their Minister of matters of significance relating to their portfolio. 

The High Court found that while the leaking of Mr Peters’ private information about the payment irregularity to the news media was a breach of his privacy, Mr Peters had failed to establish that any of the defendants were responsible for the disclosure. As Mr Peters could not identify the source of the leak to the media, his claims were dismissed. If Mr Peters could have identified who had disclosed his private information to the media, Justice Venning thought that damages in the region of $75,000 to $100,000 might have been appropriate. 

Overpayment of superannuation to Mr Peters leaked to the media 

The proceedings concerned the passing of Mr Peters’ information about an overpayment of superannuation from the Ministry of Social Development (MSD) and State Services Commission (SSC) to the Ministers responsible for those agencies, and the leaking of that information to the news media. Mr Peters brought legal proceedings against a number of parties including the Ministers of Social Welfare and State Services (at the time Paula Bennett and Anne Tolley), the chief executives of SSC and MSD, as well as the Attorney General on behalf of MSD. 

The payment irregularity arose from Mr Peters’ application for New Zealand superannuation that was processed in error on the basis that he was single. As Mr Peters was living with his partner, this gave rise to an overpayment that Mr Peters immediately repaid once identified, and the matter was closed.  Justice Venning found that responsibility for the error was shared between MSD and Mr Peters, and that the MSD form completed by Mr Peters was ambiguous (the form has since been updated). 

The two chief executives both informed their Ministers under the no surprises principle set out in the Cabinet Manual. The no surprises principle requires a chief executive to inform their Minister promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or may become the subject of public debate.

Privacy Act affirmed but not directly relevant to the privacy tort 

The application and role of the Privacy Act was affirmed although this wasn’t directly relevant to proceedings in tort. The case alleged a common law breach of privacy, rather than a breach of the Privacy Act. 

No complaint under the Privacy Act has been made about the disclosures, and therefore no conclusions have been formed about whether the chief executives’ actions in informing their Ministers about Mr Peters’ overpayment complied with the Privacy Act. The disclosure of that information to the media almost certainly was a breach of the Privacy Act, however until the individual who leaked that information is identified, no action under the Privacy Act can be taken. 

Tort of breach of privacy 

The case for breach of privacy was brought under the privacy tort – a line of case law in New Zealand and the United Kingdom under which the courts can provide a remedy to a plaintiff for serious breaches of privacy. 

Justice Venning considered the two key requirements of the privacy tort to be made out in relation to the leaking of the information to the news media (although the person responsible has not been identified). 

A reasonable expectation of privacy 

The privacy tort requires that the payment irregularity had to involve private facts about which Mr Peters had a reasonable expectation of privacy: 

“In my judgment, Mr Peters had a reasonable expectation that the fact of the payment irregularity would be kept private, to the extent it would not be disclosed other than for a proper purpose and/or would not be disclosed to parties who did not have a genuine need to know about it. 

The MSD staff and management dealing with the issue had a genuine need to know about it to deal with the review and investigation. The issue is how much further the information could properly be disclosed. Private facts may be known to some people, but not to the world at large. In my judgment, Mr Peters had, and was entitled to have, a reasonable expectation the payment irregularity would not be disclosed to the media and through them, the public at large.” 

Although a public figure and having a high public profile, this did not necessarily detract from Mr Peters’ reasonable expectation of privacy. His Honour accepted that Mr Peters keeps his private life separate from his political life as much as he is able to and that he is entitled to do so. 

The expectation of privacy is contextual however and not absolute: 

“It must take into account that there are some parties who it was necessary or appropriate to disclose the information to. As noted, that includes a number of people within the MSD involved directly in the review and investigation. It also extends to disclosure to the chief executive of the MSD and from him to the chief executive of the SSC.” 

Highly offensive to a reasonable person 

The privacy tort in New Zealand also requires the disclosure of the private facts to be regarded as highly offensive to a reasonable person. While it would not be highly offensive to disclose the payment irregularity to individuals with a reason to be informed about it, his Honour’s view was that deliberately disclosing details of the payment irregularity to the media would be considered offensive to a reasonable objective person. However, Mr Peters was unable to establish that the defendants were responsible for that deliberate disclosure. 

Informing Ministers and no surprises 

Mr Peters challenged the disclosure of the payment irregularity to government ministers under the no surprises principle. The Cabinet Manual sets out the relevant considerations and guidance that in their relationship with Ministers, officials should be guided by the “no surprises” principle in relation to matters of significance within their portfolio responsibilities. 

While normally an operational matter such as an inquiry by MSD into the basis or reason for an overpayment of superannuation would not have justified a briefing to the Minister as it was not sufficiently significant, the Court accepted that one issue raised the important principle relating to the integrity of MSD and the public service, namely that it involved a senior MP and it was important to confirm that he had not been treated any differently. 

Justice Venning summarised the position as follows: 

“The Cabinet Manual, the Solicitor-General’s briefing paper and the evidence confirm that to support a briefing on a ‘no surprises’ basis, the issue should be a matter of significance within the Minister’s portfolio. The fact that a recipient of NZS [NZ superannuation] had been overpaid, and that the MSD had investigated it and was satisfied there was no intent to mislead it, obviously, would not justify a briefing. Even the fact a senior Member of Parliament has been overpaid NZS and an investigation into the overpayment revealed it was the result of a mistake in the completion of the form would not, of itself, be a matter of significance that would justify a ‘no surprises’ briefing. The significance of the issue in the present case was, as explained by Mr Hughes (and also by Mr Boyle and Sir Maarten [Wevers]) the potential for the integrity of the public service to be questioned depending on the way the issue was dealt with. It was important to confirm that the MSD had treated this case no differently to any other case.” 

No surprises - a measure of restraint 

His Honour reached the view that the no surprises briefings about Mr Peters’ briefing would not have been necessary in this case and could have been made without naming Mr Peters, but for one relevant consideration relating to the wider context: 

“It is important there be a measure of restraint over information provided by chief executives to Ministers on a ‘no surprises’ basis and that briefings be restricted to matters of genuine significance to the Minister’s portfolio. Otherwise, virtually anything could be considered relevant or potentially controversial and, thus, justify a ‘no surprises’ briefing. Ministers may be under pressure, particularly from the media, but not even all matters of potential controversy within a department will necessarily justify a briefing on a ‘no surprises’ basis.” 

Justice Venning accepted however that the chief executives were justified in disclosing the payment irregularity and Mr Peters’ identity to the relevant Ministers due to the contextual background of the controversy relating to Metiria Turei (the co-leader of the Green party at the time) who had publicly disclosed that she had previously untruthfully claimed a benefit. 

The evidence of MSD’s chief executive was that this put the issue of the integrity of MSD’s processes front and centre, and that it was important to notify the Minister on a no surprises basis in case Mr Peters’ matter went public and raised concerns about the integrity of MSD’s processes. The State Services Commissioner also identified that the matter raised issues about the integrity of the public service, and that the information was relevant to the Minister for State Services. 

The court accepted that the no surprises briefings were therefore for a proper purpose, in good faith and to a party with a genuine interest. 

No surprises – the need for balance 

OPC welcomes the High Court decision and particularly notes Justice Venning’s caution, that a measure of restraint is appropriate when considering what operational personal information officials should disclose to Ministers.   

We will be examining the relationship between privacy and the no surprises policy in more detail. We plan to release conclusions following exploration of these issues and provide more detailed guidance on the relationship between the Privacy Act and the no surprises principle. We welcome comments and suggestions on this topic from interested commentators.

Image credit: Ministry of Justice

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