1 Feb 2003, 09:00

A man was involved in custody and domestic proceedings after he and his wife separated. His former wife contacted the Police and made complaints about him and discussed her concerns about his behaviour (and related custody and domestic proceedings) with a police officer.

The man was employed by a large organisation which offered support services, including social workers, to its staff and their families. The Police were aware this support service was available. The man alleged that following his former wife's visit, the police officer phoned the man's employer and spoke to a senior social worker about the support available to the families of staff with marital difficulties. In response to a question from the social worker, it appears that the police officer confirmed the identity of the family and explained that his contact with the support service was as a result of a visit from the man's former wife.

The complaint raised issues under information privacy principle 11. I concluded that the Police had breached principle 11, and that the breach had caused harm to the man.

Principle 11

Principle 11 limits the disclosure of personal information by an agency. There are certain exceptions. One of the exceptions allows information to be disclosed if the agency believes on reasonable grounds that the disclosure is one of the purposes in connection with which the information was obtained, or is directly related to that purpose (principle 11(a)).

The Police said that the officer contacted the social worker to establish whether the service was able to assist the man's wife. The Police argued this was part of their duty under sections 4 and 5 of the Victims of Offences Act 1987:

4 Access to services-

Victims and, where needed, their families should have access to welfare, health, counselling, medical, and legal assistance responsive to their needs.

5 Early information for victims-

(1) Members of the Police, officers of the court, and health and social services personnel should inform victims at the earliest practicable opportunity of the services and remedies available to them.
(2) Victims should also be told of available protection against unlawful intimidation.

(The Victims of Offences Act 1987 was repealed by the Victims' Rights Act 2002, which contains equivalent provisions: see sections 8 and 11.) Under the Victims of Offences Act, the Police were obliged to provide assistance to any person fitting the definition of 'victim'. The Act defined a 'victim' as:

a person who, through or by means of a criminal offence (whether or not any person is convicted of that offence), suffers physical or emotional harm, or loss of or damage to property; and, where an offence results in death, the term includes the members of the immediate family of the deceased.

When the woman visited the police station, she expressed concern about her ex-husband's intimidating behaviour towards her. The police officer formed the view that she was someone to whom the Police had a duty to provide advice and assistance, because she was a 'victim' (albeit potential) of a criminal offence. The Police claimed that because they were obliged to advise her, the officer needed to identify appropriate sources of support for her - hence the contact to the support service. The Police did not consider that any information about the man was explicitly disclosed to the support service, although they admitted that the officer had confirmed that he was attempting to assist the man's former wife.

The Police told me that, from comments during the conversation, the officer had thought the social worker was already aware of the man's marriage difficulties and, therefore, the officer's confirmation of the man's identity did not in fact 'disclose' anything to the social worker.

The Police maintained that even if a disclosure had occurred, it was covered by an exception - the disclosure was one of the purposes or was directly related to the purpose for which the information was obtained (principle 11(a)). Police identified that purpose as fulfilling their obligations under the Victims of Offences Act.

I was prepared to accept that the police officer's reason for contacting the support service was to establish whether, for the purposes of sections 4 and 5 of the Victims of Offences Act, the support service could assist the man's former wife. I did not accept that, in order to achieve that purpose, it was necessary for him to do more than make general enquiries. It seemed that the police officer went several steps beyond enquiry: he not only confirmed the name of the family involved, but also revealed that his approach had been prompted by the woman's visit to Police seeking their assistance in dealing with the man's behaviour towards her.

Although the Police argued that the officer simply confirmed matters which, in his view, were already known to the social worker, it is evident from the reports of that conversation provided to me that the social worker was far from certain who the family was. The social worker's 'identification' of them was simple conjecture, rather than actual knowledge. However, that conjecture hardened into knowledge on receiving the police officer's confirmation.

In my view, even accepting that the police officer had a legitimate purpose for contacting the social worker, there was nothing in that duty which required the officer to identify the family, nor anything which protected the officer when he disclosed further information about the woman's visit to the Police station and the reasons for it.

I took the view that confirming facts could constitute a disclosure if that confirmation provided information not previously known to the recipient. I was satisfied that this was the case here. I did not think the exception under principle 11(a) could apply. The police officer could have satisfactorily fulfilled his purpose without making any disclosure at all about the family. Accordingly the Police's actions amounted to a breach of principle 11.

Harm

In order to establish that an interference with the man's privacy had occurred, I must be satisfied that harm has resulted from the breach as set out in section 66 of the Act.

The man told me that as a consequence of the Police disclosure to the support service, a chain of events was set in motion which caused him harm. Because of the Police contact, the support service supported his estranged wife through the course of the custody proceedings. The man was prevented from receiving assistance from the support service, to which he would otherwise have been entitled as an employee. In order to receive equivalent support from an outside agency, the man had to lay a formal complaint about the actions of the support service in helping his estranged wife. In order to provide enough detail for the complaint, it was necessary for him to disclose the circumstances of his marriage breakdown to his employer.

I was satisfied that, but for the disclosure by the Police to the support service, it would not have been necessary for the man to take action to secure support from an outside agency. I was also satisfied that in order to succeed with that action it was necessary for the man to reveal domestic and highly sensitive information to his employer which he would otherwise have kept separate from his professional life. I thought these events were as a consequence of the officer's disclosures and were harmful to the man.

I advised the man and the Police of my opinion. The Police told me they were not in a position to make a settlement offer. I decided to exercise my discretion and take no further action. I told the parties of my decision and that they could take the matter to the Human Rights Review Tribunal.

July 2003

Indexing terms: Disclosure of personal information - Police - Matrimonial dispute - Confirmation of employee's name to support service at employee's work - Statutory duty under Victims of Offences Act - Victims of Offences Act 1987, ss 4, 5 - Privacy Act 1993, s 66(1)(b) - Information privacy principle 11