1 Feb 2009, 09:00

A woman was engaged in an argument with a district council. She spoke to the local newspaper about the dispute, and the newspaper then published an article about it. A reader wrote a letter to the editor criticising the council and the newspaper invited the council to respond.

The council did so. In the process, it provided detailed information about its previous interactions with the woman. This response went well beyond what the woman had herself disclosed. It was published in the next issue of the newspaper.

Principle 11

Principle 11 of the Privacy Act provides that an agency should not disclose personal information unless an exception applies.

Principle 11(b) allows an agency to disclose personal information if it believes, on reasonable grounds, that the source of the information is a “publicly available publication”. Section 2 of the Act defines “publicly available publication” as “a magazine, book, newspaper or other publication that is or will be generally available to members of the public”.

The council said that its records (such as records of interactions with ratepayers) were a “publicly available publication”. This was because legislation such as the official information statutes or the Resource Management Act could require the council to make records publicly available.

However, we were not satisfied that these records met the Privacy Act’s definition of a “publicly available publication”. First, the council did not put records such as documents about disputes with ratepayers into any “publication”. The information at issue here, for instance, was not included in any published Council report or magazine, or posted on the website. Indeed, it would be highly unusual for a Council to proactively publish this type of information.

Secondly, we were not satisfied that all council records are “generally available” to members of the public. This part of the definition assumes that information can be easily accessed with few or no conditions attached. While anyone can request access to information held by a local council, under the Local Government Official Information and Meetings Act, councils do not have to make information available under that Act in the absence of a request. Moreover, even if there is a request, a withholding ground may apply. For instance, council records about a dispute with a ratepayer might well be able to be withheld on privacy grounds. There is therefore often a possibility that a request will be refused. This possibility of refusal means that the information is not “generally available” to the public.

The council also sought to rely on principle 11(d) of the Privacy Act on the basis that the woman had, by implication, authorised the disclosure of her personal information by contacting the newspaper in the first place. However, we considered that the council disclosed different and much more extensive information from that which the woman had given. It also went beyond what was necessary to confirm or deny the allegations that she had made about the council. Therefore, it could not be said that the woman had impliedly authorised the council to disclose these details.

In this case, we concluded that the council had breached principle 11. However, we were not satisfied that the woman had suffered harm as a direct result of that breach. There was therefore no interference with her privacy, as that term is defined in section 66 of the Act. We informed the parties of our final opinion and closed our file.

January 2009

Disclosure of personal information – district council – disclosure to media – “publicly available publication” – implied authorisation to disclose – Privacy Act 1993, principle 11(b), principle 11(d); sections 2, 66.