1 Feb 2009, 09:00

A couple approached their accountant and requested copies of their personal information. Some of the information held by the accountant also related to a company run by the couple.

The accountant refused to provide any information as the couple allegedly owed him money for services provided. He said he would not provide any information until the couple had paid the debt.

The couple complained to us that the accountant's actions were a breach of principle 6 of the Privacy Act.

Principle 6 states that individuals have a right to access their personal information held by an agency. An agency may refuse access requests but only for the reasons set out in sections 27-29 of the Privacy Act. The fact that a bill is unpaid, or money is owed, is not a reason to refuse access to personal information.

We explained this to the accountant. We also explained that section 35(5) of the Privacy Act allows a private sector agency to make a reasonable charge for making personal information available. He therefore had the option of charging the couple a reasonable fee for providing copies of their personal information.

Personal information

‘Personal information' is defined in the Act as being information about an identifiable individual - that is, a human being. Information about a company is not personal information. The Privacy Act only governed the information about the couple themselves. It did not dictate whether the accountant had to provide the company information.

A reasonable charge

The accountant advised us that the information consisted of around 500 pages. He advised us that he wanted to charge $795 to photocopy the information and provide it to the couple.

The Ministry of Justice guidelines for charging under the Official Information Act are a useful measure of what a reasonable charge will be. These guidelines state that the first 20 pages should be provided free of charge and that the agency can charge 20c per page for any pages after that. The agency can not charge for the first half hour spent on collating and copying, but after that can charge $38 per half hour.

We indicated that we did not think the accountant's proposed charge was reasonable. It was well in excess of what the guidelines would indicate was a reasonable fee. We encouraged him to reconsider his position but he refused to do so.

Section 78 of the Privacy Act gives the Privacy Commissioner the discretion to determine the amount of a charge where we take the view that a charge is unreasonable. Any determination under section 78 is final and binding on the agency and on the requester. It cannot be appealed to the Human Rights Review Tribunal.

The Commissioner made a determination that the $795 charge was unreasonable. In coming to this view, she took the following factors into consideration:

• The Ministry of Justice guidelines are a useful reference point. Since they apply to public sector agencies, and to providing information under the Official Information Act, they are only indicative. However, as with section 35(5) of the Privacy Act, the guidelines are based on a reasonable cost-recovery figure. The policy reasons for allowing charging under the OIA and the Privacy Act are closely enough aligned that the guidelines are a good starting point.
• A reasonable charge under the Privacy Act may in some cases be lower than the charges indicated under those guidelines. It is rare that a higher fee would be justifiable. For instance, the guidelines allow for generous labour charges that will not always be appropriate.
• The accountant proposed to use a professional copy service to do the photocopying and those service charges accord roughly with the per-page copying charge indicated in the guidelines. The Commissioner noted that it was important in such cases to have proper agreements as to confidentiality of the information that is sent to the professional copy service.
• Applying the guidelines to this situation, based on the estimate of 500 pages of information, the charge would amount to no more than $150.00. This allowed for one chargeable hour of time spent photocopying.

The Commissioner therefore determined that the accountant was entitled to charge the couple $150.00 for access to the information.

This determination was final and legally binding on both parties. Either party could therefore have enforced it.

However, the accountant still refused to make the information available. The accountant had therefore interfered with the couple's privacy and we referred the matter to the Director of Human Rights Proceedings.

It transpired that the accountant had miscalculated and that there was substantially more than 500 pages of information involved. The Director settled the complaint. The accountant provided all the information for only a little more than the $150.00 that the Commissioner had originally set. The couple were satisfied with this result.


October 2009

Access to personal information - accountant - refusal to provide information - unreasonable charge - formal determination of reasonable charge - settlement by Director of Human Rights Proceedings - Privacy Act 1993, sections 35, 78