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Privacy Act 2020

Under section 49(1)(a)(ii), an agency can refuse to provide access to personal information if the disclosure would create a significant likelihood of serious harassment of an individual.

Privacy Act 2020 reference:

This ground has a high threshold as the section requires a significant likelihood.  By contrast, other withholding grounds allow an agency to rely on them if disclosure is ‘likely’ to prejudice certain other interests.[1] The Court of Appeal has found the test for “likely” requires “no more than a distinct or significant possibility, a serious or real or substantial risk that the prejudice might eventuate.”[2] However, for the harassment ground to apply, it must be a significant likelihood. To withhold on this basis, serious harassment must be a very likely outcome of releasing the information.

What is harassment?

Harassment is repeated, unwanted contact with other individuals in ways that fall short of posing a physical danger to those individuals but that seriously detract from their quality of life.[3]

Questions that may be relevant to consider before relying on this ground include:

• would releasing the information very likely trigger serious harassing behaviour?
• has the person sent emails that are abusive, threatening or offensive (rather than simply sending several, follow-up emails because the agency hasn’t responded)?
• is contact by the person unreasonably persistent?
• does the requester have a history of abuse/harassment?
• the nature of the behaviour the agency anticipates the person is very likely to engage in (if known) and whether it would constitute acts of harassment (e.g. direct contact with a person or posting public criticism)?
• if names are at issue, is the person already known to the requester (e.g. their contact person or case manager)?

Under the Harassment Act, harassment is a pattern of behavior that includes any of the following types of actions:

• watching, loitering near, hindering access to a place the person frequents;
• following, stopping, or accosting them;
• entering, or interfering with, property in that person’s possession;
• making contact with that person;
• giving offensive material to that person or leaving it where it will be found by or brought to the attention of that person;
• giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person;
• acting in a way that causes the person (and would cause a reasonable person) to fear for his or her safety.

A “pattern” of behaviour would mean any of the above acts committed on at least two occasions within a 12-month period or one continuing act over a protracted period.

The most serious type of harassment is criminal harassment where a person intends their harassment to cause a person to fear for their safety or the safety of their family.

What is serious harassment?

For the ground to apply there must be a significant likelihood of serious harassment as a result of the disclosure. This includes criminal harassment and other forms of harassment that can be viewed as serious in the circumstances. For example, acts of harassment that a reasonable person would consider to be objectionable.

Other refusal grounds might apply

If the high threshold in section 49(1)(a)(ii) is not reached, an agency can consider whether another refusal ground might apply instead. For example, the disclosure could be the unwarranted disclosure of the affairs of another individual (section 53(b)).

[1] E.g. section 49(1)(a)(i) and s 51 of the Privacy Act 2020.

[2] Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA).

[3] Law Commission Review of the Privacy Act 1993 – Review of the Law of Privacy Stage 4 (Wellington, 2011) at [3.76].