An angler fishing in Lake Taupo was found by a Department of Conservation (DOC) officer to have an undersized trout. He was questioned by the officer. The angler felt the questioning went too far, and interfered with his privacy. He complained to me. His complaint raised issues under principles 1, 3 and 4. I formed the view that there was no breach of principles 1 and 4 and, although there was a breach of principle 3, harm from that breach was not established.
Principle 1 restricts the collection of personal information from individuals, unless the information is collected for a lawful purpose connected with a function or activity of the agency and the collection is necessary for that purpose.
The angler sent me the list of questions he said he was asked. DOC agreed that the officer had asked questions relating to name and contact details, but disputed that the angler had been asked questions such as the length of time at his current address, his employer and his nationality.
Regulation 15 of the Taupo Fishery Regulations 1984 requires an angler to give his or her name, address and fishing licence details if asked by a DOC officer. I formed the opinion that DOC had a lawful purpose in collecting that personal information about the angler and that the collection was necessary for the purpose.
It was not possible to establish conclusively if any other questions had been asked. However, even if the other questions had been asked, that information would have been consistent with DOC's purposes in monitoring the fishery and in preventing, detecting, investigating and prosecuting offences.
Principle 3(1) provides that an agency collecting information directly from an individual must take such steps as are reasonable in the circumstances to ensure that the individual concerned is aware of, among other things, whether the collection is required by law, the consequences of failing to provide the requested information, and that individual's right to access and correct the information collected (principles 3(1)(a) - (g)).
The steps referred to in principle 3(1) are to be taken before the information is collected or, if this is not practicable, as soon as practicable afterwards (principle 3(2)).
Because the DOC officer had identified himself, was in uniform, and the collection was in the form of face-to-face questions and answers, I did not think DOC was obliged to take any further steps to let the man know that information was being collected (principle 3(1)(a)).
Principle 3(1)(b) requires the purpose for which information is collected to be made clear. DOC said that once an offence had been detected, it would have been obvious to the man that the information was being collected in connection with that offence, because the officer informed him of the offence and immediately questioned him.
I was satisfied that by the officer identifying himself, DOC met its obligation to inform the angler of the intended recipients under principle 3(1)(c) and by giving the angler the officer's 'card', the requirement to notify him of the agency's name had been met (principle 3(1)(d)).
I then considered the further provisions of principle 3 which require an individual to be advised whether answers are authorised or required by or under law (principle 3(1)(e)), the consequences if information is not provided (principle 3(1)(f)), and the right to access the information collected and to correct it if necessary (principle 3(1)(g)).
DOC relied on the exceptions provided by principle 3(4)(d) (prejudicing the purposes of collection) and principle 3(4)(c) (maintenance of the law) to excuse it from meeting these requirements.
Prejudicing the purposes of collection
DOC said that it told alleged offenders of their obligation to answer certain questions under the Taupo Fishery Regulations 1984 only if an angler had been questioned and had refused to co-operate. At that point, the issue of prejudicing the purposes of the collection through giving, in its view, premature (and prejudicial) advice, would not arise.
However, I was not satisfied that if individuals were advised that certain questions were mandatory, and others were voluntary prior to asking those questions, the purposes of the collection would be prejudiced. In my opinion, DOC could still collect sufficient information to enable alleged offenders to be traced and prosecuted. Individual anglers would probably not refuse to volunteer information beyond that which was required, because they would generally be willing to co-operate with the warranted officer so as not to prejudice their own position.
Maintenance of the law
I then considered the 'maintenance of the law' exception. I accepted that DOC's law enforcement officers have a function to maintain the law. The questions allegedly asked that exceeded those that were mandatory to answer were all directed at obtaining sufficient information to enable DOC to trace the angler, and were not concerned with the circumstances of the alleged offence. I was not satisfied that informing the angler of his obligations at law, and the consequences of failing to observe those obligations, could be said to risk prejudicing the maintenance of the law.
DOC failed to advise the angler of those matters required under principle 3(1)(f) and, by doing so, I thought had breached principle 3.
DOC did not advise the angler, either before or after collecting information, of his right to access the information collected about him and to correct it if necessary. I formed the opinion that DOC's omission to do so was in breach of principle 3(1)(g).
The angler alleged that the collection of personal information about him by DOC was achieved by unlawful and unfair means that intruded to an unreasonable extent on his personal affairs. Given the view I had formed about principles 1 and 3, it was my opinion that DOC did not collect the information by unlawful means.
Further, I did not consider that the means of collection were unfair. The officer had identified himself as a warranted officer of DOC, engaged in monitoring fishing activities, and had asked the angler questions face-to-face. I did not think that the means of collecting personal information from the angler intruded to an unreasonable extent upon his personal affairs. In my opinion DOC's actions did not breach principle 4.
The angler alleged that, as a result of DOC's actions in questioning him about an undersized trout, he was embarrassed and felt humiliated. I accepted that he felt embarrassed and aggrieved as a result of being questioned by the officer. However, in order to establish an interference with an individual's privacy, section 66 of the Privacy Act requires that any loss, adverse effect, significant injury to feelings or significant humiliation suffered by the individual must result from a breach of an information privacy principle.
I formed the opinion that the angler's feelings of humiliation were not the result of a breach of principle 3 by DOC, but resulted from his possession of an undersized fish in breach of a fishery regulation. Moreover, although he may have been humiliated, I was not satisfied that DOC's actions caused him significant humiliation. Therefore, it was my opinion that DOC's actions in collecting the personal information did not amount to an interference with the angler's privacy.
DOC advised me that in future it would endeavour to comply with its obligations under principle 3. DOC changed its policy and will ask only those questions requiring an answer under the Fisheries Regulations. I was satisfied with the action proposed by DOC and closed my file.
Indexing terms: Collecting personal information - Department of Conservation - Alleged breach of Fisheries Regulations - Whether scope of questions necessary -Taupo Fishery Regulations 1984, regulation 15 - Information privacy principle 1
Collecting personal information - Department of Conservation - Alleged breach of Fisheries Regulations - Steps taken to make individual aware of fact and purpose of collection -Steps taken to make individual aware of intended recipients and name of agency - Information privacy principle 3(1)(a), 3(1)(b), 3(1)(c) and 3(1)(d)
Collecting personal information - Department of Conservation - Alleged breach of Fisheries Regulations - Informing individual of legal basis for questions and consequences of not answering - Steps taken to make individual aware of rights of access and correction - Prejudice to purposes of collection or maintenance of the law - Whether breach caused harm - Whether harm significant - Privacy Act 1993, s 66(1)(b)(iii) - Information privacy principle 3(1)(e), 3(1)(f), 3(1)(g), 3(4)(c) and 3(4)(d)
Collecting personal information - Department of Conservation - Alleged breach of Fisheries Regulations - Whether means of collection unlawful or unfair - Information privacy principle 4