1 Feb 2010, 09:00

A man wanted to apply for a job at an educational institution. As part of this process he was required to fill out an application form. One of the questions in the application form asked the man to list any criminal convictions and whether he had any criminal charges pending. The man did not consider that information about pending criminal charges was necessary for the recruitment process.

Principle 1

Principle 1 of the Privacy Act requires that personal information shall not be collected by an agency unless the information is collected for a lawful purpose connected with a function or activity of the agency and the collection of the information is necessary for that purpose.

It was clear from the circumstances that the educational institution was collecting this information for a lawful purpose connected with its function. That is, the information was collected for the purpose of recruiting staff and was connected to its function, which is educating people.

The issue that remained was whether the information about pending criminal charges was 'necessary' for this purpose.

We wrote to the educational institution to seek their view on this issue. It advised that this information was necessary for the following reasons:

• It has obligations to its employees and students including pre-schoolers;
• Under section 2A of the Health and Safety in Employment Act, it must take reasonable and practical steps to ensure the safety of its employees and its students;
• The impact of a conviction may mean that an applicant cannot work in their chosen field;
• It employs people in early childhood to adult education and in support areas where convictions, for example, for fraud or theft would disqualify them;
• Section 4 of the Employment Relations Act provides that parties to an employment relationship must deal with each other in good faith; and
• It is important for applicants to declare convictions and pending prosecutions to allow it to safeguard its employees, students and its business.

What was 'necessary' has also previously been considered by our Office and the Human Rights Review Tribunal.

In Lehmann v Canwest Radioworks Limited (decision No 35/06, HRRT 8/04, 21 September 2006) the Tribunal stated that:

Principle 1 is intended to set a standard that is workable and achievable, having regard to the circumstances of each case... Principle 1 should be approached as setting a standard of reasonable rather than absolute necessity. [Emphasis added]

In Case Note 2418 [1999] NZ PrivCmr 6 the collection of information about a prospective employee's personality and attitudes was found to have a lawful purpose connected with the employer's function. The Privacy Commissioner stated that:

The use of such extensive questions could probably be justified only in the context of obtaining the information as part of a comprehensive personality test to assess aptitude for a particular position. I could not say in this case that such a test was not necessary, or that the amount of information collected was excessive, so I could not establish that Principle 1 had been breached in this case.

In Case Note 87513 [2006] NZ PrivCmr 11 an employer asked a job applicant questions concerning his personal life and health status, and included queries about the applicant's relationship with his wife and children. In those circumstances the Privacy Commissioner formed the view that the employer's questions had breached principle 1 as being unnecessary for the purposes of recruitment.

In Cassidy v NZI Insurance (unreported, Complaints Review Tribunal, Decision No 14/2000, CRT 25/00, 30 June 2000) the plaintiff alleged that an insurance company breached principle 1 as it sought to collect information about previous convictions from applicants for insurance cover. The Tribunal noted that it is well known and understood that 'an insurer must have all relevant information necessary to properly calculate risk and set the premium. There will be occasions when the existence of criminal convictions is relevant to this task.'

The Tribunal accepted that in terms of Principle 1, 'the collection of information about criminal convictions was a lawful purpose connected with a function or activity of the insurers, and that it was necessary for that purpose.'

When we considered the reasons provided to us by the educational institution as to why information about pending criminal charges was necessary, we considered that collecting this information was necessary for the institution's purpose of recruiting staff.

It is information so closely related to that of criminal convictions that it was necessary for the institution to collect it to ensure that the person that it hired to carry out a particular role was able to continue in that role. As in Cassidy, there was an element of collecting information to calculate risk, that risk being whether an employee is going to be able to continue in employment if criminal charges were pending and then found to be proven.

We considered that there was a reasonable necessity to collect this information given the circumstances of an educational institution recruiting staff and the stakeholders they are required to consider. As set out in Lehmann the information does not have to be of an absolute necessity to avoid a breach of principle 1.

We conveyed this view to the parties and closed our investigation on this basis.

September 2010

Collection of personal information - educational institution - necessary for a lawful purpose - reasonable necessity - Privacy Act 1993; principle 1