12 Mar 2019, 09:00

A man made a request to a law firm for access to his information. The law firm demanded the long-time client pay $19,000 to be sent his information. The law firm also did not respond to the client’s request for information within the 20 working days' time-frame required by the Privacy Act.

Principle 6

The client’s complaint to our office raised issues under principle 6 of the Act which says individuals have a right to have access to personal information held by an agency. Principle 6 requires agencies to respond as soon as practicable but no later than 20 working days after the request is received.

If a response is not given by the time the 20 working days are up, this is an automatic interference with the requester’s privacy.

In his complaint, the client explained the files were necessary for unrelated legal proceedings which could not proceed without them.

Charging

When the law firm belatedly responded to the complainant’s request, it informed him that the cost of providing the information was $19,000.

Section 35 of the Privacy Act provides that charges may be applied but it limits what actions can be charged for and it requires the charge be reasonable. For instance, an agency may not charge for processing the request. However, an agency may charge for the cost of photocopying or printing, and the staff time required for carrying out the administrative task.

Our office generally refers to the Ministry of Justice charging guidelines - but these guidelines are not determinative, and the total cost should be assessed for reasonableness.

The law firm said it applied the Ministry of Justice guidelines. It claimed the complainant’s documents amounted to 1.46 gigabytes of information, or 95,877 pages. Applying photocopying costs of 20 cents per page (for pages beyond 20) and $38 labour costs per half hour (after the first hour), it arrived at the total of $19,175.

Complaint

In our view, the law firm’s estimate of $19,000 was far above what might be considered a reasonable charge under section 35. This is despite the information requested being a considerable quantity of files and documents.

The client indicated to us he would be happy to receive the information in a digital form on a USB or other digital storage device. We relayed this information to the law firm. We said the material costs of photocopying did not apply if the information was provided in digital form on a USB stick.

The law firm responded by saying this would not change the charge, despite no photocopying being required.  

We informed the firm that under section 78 of the Act, the Privacy Commissioner may determine the amount of a charge that may reasonably be imposed by an agency in respect to a request.

To transfer the 1.46GB amount of information, the Commissioner exercised his section 78 power to set the charge at the reasonable cost of purchasing a USB. An 8GB USB stick could be purchased from the Warehouse Stationary for $7.99.

Furthermore, section 40 required the law firm to respond to the information request within 20 working days of receiving the request. The law firm did not meet this obligation. This breach of section 40 was an automatic interference of the client’s privacy.

Closing the file

We informed the law firm of our preliminary view that it had breached the client’s privacy by not responding to the information request in time. We also advised of the Commissioner’s determination under section 78 as to the charge that may reasonably be imposed (such as $7.99) – a decision that is final and binding.

We advised the firm that once we closed the complaint, the client would be able to take his case to the Human Rights Review Tribunal. We invited the law firm to reconsider its response for a final time.

The law firm did not accept our view and refused to back down on the $19,000 cost. We closed the file and advised the man of his right to take the case to the Tribunal. He duly filed proceedings with the Tribunal.

We wrote to the law firm saying that as the matter was before the Tribunal, we suggested it provide the client the information without further delay. The client informed us soon afterwards that the law firm had delivered two boxes of files to him. The man had them copied and returned them to the firm’s offices.