1 Feb 2002, 09:00

The pastor of a church was having marriage difficulties and was receiving counselling through elders of the church. The elders prepared a statement that was read at a public meeting of the church. It explained the couple's difficulties at some length, and asked the congregation to pray for them.

The pastor complained that the elders had divulged personal and sensitive information about him in the statement and had violated his privacy. He also said that the statement contained inaccuracies that misrepresented his situation. The complaint raised issues under information privacy principles 8 and 11.

In responding to the complaint, the church said it was not a body to which the Privacy Act applied. It also argued that the New Zealand Bill of Rights Act 1990 gave a church the right to manage its internal affairs, free from state interference. Finally, it maintained that because the statement had been read out within the church, it was not a disclosure under the Privacy Act.

I considered the church's arguments in my preliminary investigations but did not form an opinion on the issues as the parties reached a settlement.

The issues

Definition of 'agency'
Section 2 of the Privacy Act defines an agency as 'any person, or body of persons, whether corporate or incorporate and whether in the public or private sector...'. It lists a number of exceptions, but churches and religious organisations do not come within these. The church was an agency to which the Privacy Act applied.

New Zealand Bill of Rights Act 1990
The church's view was that the freedom of expression and freedom of worship guaranteed in sections 13 and 15 of the New Zealand Bill of Rights Act 1990 included the right of any church to manage its own affairs free from state control and interference. The church quoted section 6: 'whenever an enactment can be given a meaning that is consistent with the rights and freedom contained in this Bill of Rights, that meaning shall be preferred to any other meaning.' However, I noted section 4 states:

_Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), -
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment -
by reason only that the provision is inconsistent with any provision of this Bill of Rights._

The Privacy Act came into effect in July 1993, some three years after the Bill of Rights, and contains 12 information privacy principles covering all aspects of how personal information is dealt with. The principles provide additional rights to individuals in respect of information held about them.

Section 69 of the Privacy Act requires me to investigate complaints arising under the privacy principles. I expressed the view that the Privacy Act had to be construed in terms of section 4 of the New Zealand Bill of Rights Act, but that the Bill of Rights did not override the Privacy Act's provisions.

Disclosure within an agency
The church considered that it was not possible to breach privacy principle 11 by disclosing information within the same agency. Assuming for the purposes of this argument that church attendees are within that agency, I nevertheless took the view that it is possible to breach principle 11 by disclosure to persons within the same agency. Principle 11 prohibits disclosures 'to a person or body or agency'. A person who is in some way within the disclosing agency may be singularly inappropriate to be a recipient of certain personal information held by the agency. For instance, it may be appropriate to discuss an alleged staff impropriety with a director or manager in order to carry out disciplinary action, but it may not be appropriate for every employee in the agency to be informed of the matter. I consider that it would require clear wording to exclude that sort of situation from the purview of principle 11.

I am mindful of a decision by the Complaints Review Tribunal in 2000 that suggests disclosure by an agency to one of its employees is not a disclosure caught by principle 11, but it appears that the point was not canvassed in the hearing or covered by any legal submissions received and so I do not consider myself bound by the Tribunal's comments on it. In my view the disclosure in the present case is covered by principle 11.

Settlement

The church advised me that it accepted that it was covered by the Privacy Act. It did not wish to pursue legal arguments on the other points any further, but instead wished to settle the matter. The pastor and the church agreed on a statement which was read at a public meeting of the church. Copies were sent to all previous members who would have been present at the earlier meeting. The church also paid the pastor's legal expenses.

The parties were satisfied and I closed my file.

Indexing terms: Disclosure of personal information - Church - Statement about pastor's marriage difficulties read at church meeting - Definition of 'agency' - Church bound by law of the land - New Zealand Bill of Rights Act 1990, ss 4, 6, 13 and 15 - Privacy Act 1993, s 2, s 69 - Information privacy principle 11

June 2002