A man shared a house with a woman receiving income support. The department responsible for social security benefits decided to investigate allegations that the two were living in a de facto relationship, as this could affect the woman's benefit.

Statements about the relationship were taken from a number of people. The department decided to prosecute the woman for fraud and, in the process of informing her about this case, a number of the statements were released to her. The department later claimed that the release was 'premature, improper and too extensive'.

The man requested access to all information about him held by the department. He was told that information would be withheld under section 27(1)(c) of the Privacy Act 1993. He complained to me.

Section 27(1)(c) provides that an agency may refuse to disclose information that has been requested under principle 6 if disclosing the information would be likely to prejudice the maintenance of the law, including the prevention, investigation and detection of offences, and the right to a fair trial. The department argued that the release of the information would affect its ability to successfully prosecute the woman.

In some cases, while understanding an agency's wish to withhold information during the course of an investigation, I have taken the view that once the investigation is complete and a prosecution commenced, the reason for withholding the information generally no longer applies.

The Court of Appeal in Commissioner of Police v Ombudsman ¹⁹⁸⁸ 1 NZLR 385 concluded that, as a rule, briefs of evidence and other materials should be disclosed to a defendant when a charge had been laid.

Here, I was concerned about disclosure to a witness rather than a defendant but, in the circumstances of the case, considered the same principle of openness should apply. This view was reinforced by the fact that the man had already seen most, if not all, of the information that had earlier been disclosed to the woman.

In a provisional opinion to the department I considered that it did not have a proper basis to withhold information from the man and to withhold it amounted to an interference with his privacy. The department released the information to the man. I discontinued my investigation on the basis that the man did not want further action taken.

Indexing terms: Access to personal information - social welfare department - Refusal - Release would not be likely to 'prejudice the maintenance of law' - Release to a witness - Privacy Act 1993, s27(1)(c) - Information privacy principle 6

October 2001