We were asked to investigate the actions of the Ministry of Education in collecting information about the complainants' daughter from a medication register at a child care centre.

The complainants alleged that ministry officers entered the child care centre and obtained copies of the register of medication administered to children at the centre. The ministry maintained that the actions of the officer were authorised by section 318 of the Education Act 1989. The complainants argued that section 318 of the Act permits inspection of documents but it does not confer the right to seize documents. Furthermore, the complainants said that the officers did not produce evidence of authorisation or identity when they entered and inspected the centre, as required by section 318.

The ministry confirmed that its officers did not provide evidence of their written authorisation or their identity as required under section 318, explaining that these procedures were not followed because they were well known to the licensee of the child care centre. The ministry agreed that the officers did not have the power to uplift copies of documents. It said, however, that the licensee appeared to have complied voluntarily with the request for a copy of the register.

The ministry stated that the record was requested for the purpose of an investigation to ensure the health, safety and welfare of children attending the child care centre. The records were needed to investigate complaints that children had been given medication without the consent of their parents and complaints that the centre may have been breaching regulations by accepting sick children who could infect others at the centre.

I formed the opinion that, while the ministry was empowered to inspect the medication register maintained by the child care centre under section 318 of the Education Act 1989, it did not resort to using those powers. I accepted that the licensee of the child care centre had voluntarily provided, on request, a copy of the medication register. I did not need to assess therefore whether the ministry's actions were authorised under a specific law (section 7(4) of the Privacy Act). Instead I considered whether there had been a breach of information privacy principles 1 and 2.

Principle 1

I considered whether the collection of the information contained in the medication register was necessary for a lawful purpose connected with a function of the Ministry of Education (principle 1). The Ministry is the licensing body responsible for ensuring children attending child care centres are not placed at risk, and that centres comply with the Education Act 1989 and the Education (Early Childhood Centres) Regulations 1990. To fulfil its function as the licensing body, it is necessary for the ministry to collect information to enable it to investigate allegations of a breach of a regulation. I therefore formed the opinion that the Ministry of Education's actions had not breached principle 1.

Principle 2

The ministry submitted that it was not necessary for it to comply with principle 2 because it was not reasonably practicable to collect personal information from the individual concerned (principle 2(f)). In this case, the age of the complainants' daughter meant it was impracticable to obtain information from her. It would have been equally impracticable to obtain information from parents or guardians, as they could only confirm what their instructions were in regard to the administration of the medication, but could not say whether those instructions had been carried out. The register enabled the ministry to monitor whether the centre was acting according to the requirements of the early childhood regulations.

I also noted that the ministry could probably rely on exception 2(c) which allows non-compliance with principle 2 if it does not prejudice the interests of the individual concerned. In view of serious allegations about the running of the centre, it appeared that the interests of the complainants' daughter were being protected rather than prejudiced.

- The complainants also expressed concerns about not being consulted about the release of the information and the centre's failure to seek their authorisation. They did not wish to make a complaint about the actions of the centre. I pointed out that any complaint about wrongful disclosure would have to be made against the centre and it was probable that the centre would refer to the provisions of the Education Act for its authority to release the record.

Indexing terms: Collecting personal information - Ministry of Education - Information about child collected from register - Education Act 1989, s 318 - Privacy Act 1993, s 7 - Information privacy principles 1, and 2(2)(c) and (f)

June 2001