21 Mar 2017, 09:00

A man complained to the Privacy Commissioner that Child Youth and Family (CYF) records incorrectly showed he had been jailed for sexual offending, and this information had never been corrected on his file.

The man’s son was placed in CYF’s care in 1999. From 2001 to 2012, CYF social workers noted in reports to the Family Court that there were allegations of physical abuse and inappropriate sexual conduct by the man.

In 2012, a CYF social worker reported that the man had been imprisoned as the result of sexual abuse charges. This information was then repeated by subsequent social workers, despite the man having never been charged, prosecuted or jailed for sexual offending.

In 2013, the man contacted CYF twice to advise it that the information about him on his son’s file was wrong. A lawyer acting for the man also informed the Family Court of the incorrect information at a hearing.

Despite being told three times that the information was wrong, in 2015 CYF filed another report in the Family Court stating the man had been in prison as a result of sexual abuse charges.

In 2016, a CYF regional manager acknowledged in a letter that the agency had made errors in the case and apologised. The manager also accepted that all the information complained about by the man was indeed wrong and that CYF had been told twice by the man and once by his lawyer.

Soon after the manager’s letter, CYF filed a memorandum in the Family Court advising the Court the information was incorrect.

Complaint to Privacy Commissioner

In his complaint to us, the man explained the harm he had suffered as a result of CYF’s failure to correct his information for so long. Despite the apology and the correction of the information within the Ministry and the memo to the court, the man said he had suffered significant hurt and humiliation.

He said the incorrect information had affected his relationships with his family and friends. Some relationships were irreparably damaged. He said his family members, including his son, believed the information on CYF’s case file that he was a sexual offender. Other family members, as well as friends and members of the community, also found out about the abuse allegations. He told us he had been assaulted by an extended family member and his house was attacked and damaged on several occasions.

We informed the Ministry of Social Development (MSD), of the man’s complaint and asked for it to provide comments to us. The complaint raised issues under principles 7 and 8 of the Privacy Act.

Principle 7

Principle 7 says a person is entitled to request correction of personal information held by an agency, or to request that a statement of correction be attached to the information, if a correction was sought but not made.

Principle 7 also says an agency shall take steps to correct information, and ensure the information is up-to-date, complete, and not misleading.

Principle 8

Principle 8 says an agency shall not use personal information without taking reasonable steps to ensure the information is accurate, up-to-date, complete, relevant and not misleading.

Privacy Commissioner investigation

The man provided us a copy of his criminal history report. There was no record he had ever been charged with, or convicted of, sexual offences.

MSD, in its response to our office, advised that the first reference to previous convictions for sexual assault appeared on a report submitted to the Family Court in 2001. However, the Ministry did not provide any information about the steps it took to check the accuracy of the information between 2001 and 2016.

MSD informed us that the errors occurred because social workers were investigating concerns of sexualised behaviour between children. The man had previously received a 12 month suspended sentence for assaulting children in his care after he found them engaging in sexualised behaviour. MSD said it believed those events had been misinterpreted by CYF staff.

MSD acknowledged these allegations had been repeated throughout the case file, even though it was not able to find any evidence to support the claims.

MSD was not able to provide any evidence that it responded to the man’s requests in 2013 for his information to be corrected.

There are two components to investigations of this sort. First, we establish if a breach of a principle of the Privacy Act occurred, and secondly, we assess whether the breach caused harm to the person.

We formed the view MSD had interfered with the man’s privacy under principle 7 by failing to respond to his request to correct information and by failing to correct the information within a reasonable time. We also found that MSD breached principle 8 by failing to take reasonable steps to check the accuracy of the information it held about the man before using and disclosing it.

In this instance, the man was incorrectly presented in the Family Court as having convictions for sexual offences. We noted in our final view that while Family Court is typically a closed court, those present in court are likely to discuss the events with their family and associates. The uncorrected allegations affected the man’s relationship with his child and wider family.

We considered the stigma associated with convictions for sexual offending is such that to have it inaccurately recorded was sufficient to have caused him significant humiliation, significant loss of dignity and significant injury to his feelings. We formed a final view that the man experienced harm which met the threshold set out in section 66 of the Privacy Act.

We referred the man’s complaint to the Director of Human Rights Proceedings for the case to be considered before the Human Rights Review Tribunal.

March 2017

Child, Youth and Family – incorrect allegations of sexual assault – failure to correct – incorrect information of sexual offending repeatedly used without checking – harm – referral to Director of Human Rights Proceedings; Privacy Act 1993; principle 7; principle 8