1 Feb 2010, 09:00

The complainant made a request to Police for the personal information they held about him in relation to an incident in which Police had been involved. This incident related to immigration charges that had been laid against the complainant by the Department of Labour. He specifically requested information about whether he had been under surveillance by Police prior to the incident. The Police provided him with a copy of the information about him that was held electronically on the National Intelligence Application (NIA) database. Police also relied on section 32 of the Privacy Act to refuse to either confirm or deny that they held the requested surveillance information.

The complainant asked us to review the Police's response. He believed that a hard copy file existed in addition to the electronic NIA record. He also did not accept that the Police could rely on section 32 in relation to his request for surveillance information.

Under principle 6 individuals have a right to access personal information that is held about them. This is not an absolute right, and an agency can refuse to provide information if it has a proper basis to do so.

‘Readily retrievable'

When Police were notified of this complaint they confirmed that they did hold a separate hard copy file which contained information that was within the scope of the complainant's request but was not contained on the NIA record.

However, the Police argued that they had a proper basis under section 29(2)(a) to refuse to provide the complainant with the hard copy file relating to the charges against him. Section 29(2)(a) allows an agency to refuse a request for personal information if the information is not readily retrievable. Police considered that providing the information from NIA was sufficient to meet their obligations.

Whether or not information is readily retrievable will depend on the circumstances of the particular situation. Here, the hard copy file was held at the Police station which had been involved. We considered that it was easily retrievable, and advised the Police that we did not consider they had a proper basis under section 29(2)(a) to refuse to provide it to the complainant. The Police accepted this, and provided the file to the complainant, together with an apology for not dealing with his request correctly.

The Police also accepted that it was not correct to provide only NIA information in response to information privacy requests. They agreed to amend their practices to better meet their obligations.

Section 32

Section 32 allows an agency to respond to a request for personal information by telling the requester that it neither confirms nor denies the existence or non-existence of the information being asked for. This section can only be used where the information requested is information which section 27 or 28 applies to (or would apply to, if it existed). The agency may rely on section 32 if it is satisfied that the interest protected by section 27 or 28 would be likely to be prejudiced by the disclosure that the information did or did not exist.

Here, Police argued that if they were to tell the complainant that they did not hold the surveillance information he wanted then he would become aware that some of his activities had gone unnoticed, and that this would be likely to result in him committing offences in the future. This would prejudice the Police's ability to maintain the law, which was an interest protected under section 27(1)(c).

I accepted that in some circumstances confirming that someone has not been under surveillance could be highly relevant to the Police's ability to maintain the law, and could potentially be withheld under section 32. However, I was not satisfied that this was the case here. This was because the Police did not provide any evidence as to why the complainant would be likely to commit offences in the future if he knew that he had not been under surveillance in the past.

After I told the Police I did not think they could rely on section 32 to refuse the complainant's request for surveillance information they agreed to tell him that they did not in fact hold any such information.

Conclusion

After the Police had told the complainant there was no surveillance information, and had undertaken to amend their practices in relation to answering to information requests, we decided not to take any further action on the complaint.

September 2010

Access to personal information - Police - request for personal information relating to charges - readily retrievable - 'neither confirm nor deny' not available; Privacy Act 1993; principle 6, section 29(2)(a), section 32