1 Feb 2010, 09:00

NB: The Human Rights Review Tribunal considered the issue of “evaluative material” in Director of Human Rights Proceedings v NZ Institute of Chartered Accountants NZHRRT 54 [2015]. The Tribunal found that 'other benefits' was not confined to employment and education, and rejected the narrow approach taken in the case note below. 

A complainant applied to rent a house through a real estate agency. As part of that process the agency conducted a credit check and obtained references from the complainant's referees. The rental application was subsequently declined.

The complainant asked to see all the information the real estate agency held. No information was provided.

We contacted the real estate agency and it advised us that the only information it held was a credit check and the complainant's application form. The complainant already had copies of these.

The agency also referred to reference checks it had carried out. It was apparent that an employee of the agency had spoken to the referees but had not made a written record of those conversations.

Principle 6

Principle 6 of the Privacy Act provides an individual with the right to access personal information that is readily retrievable. That can include information held in someone's mind. Whether information is readily retrievable may depend on factors such as how long ago a conversation took place.

We explained this to the agency and it acknowledged that this information was still within the employee's knowledge. The agency sought to rely on section 29(1)(b) of the Privacy Act to withhold the information from the complainant. Section 29(1)(b) allows an agency to refuse information if:

1. ...
(b) The disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise-

To withhold information under section 29(1)(b), four conditions must be met:

1. The information must be evaluative or opinion material compiled solely for one of a limited number of purposes set out in section 29(3);
2. The information must be supplied to the agency seeking to withhold it;
3. There must have been an express or implied promise made to the person providing the information that their identity or the information (or both) would be held in confidence;
4. Releasing the information to the requester would breach that promise.

'Evaluative material' is defined in section 29(3) and includes material compiled for the award of contracts, scholarships, honours or other benefits. The agency argued that the referee's information fell within the definition of 'other benefits' in section 29(3)(a)(iv). Section 29(3)(a) and (b) both refer to the employment arena.

We believe that 'other benefits' ought to be interpreted narrowly to confine that term to the primary concessions in section 29, of employment and education. We did not consider that tenancy property fell within the definition of 'other benefits' in section 29(3)(a)(iv).

We reviewed the information concerned and formed the view that information provided to a real estate agency by a referee did not fall within the definition of evaluative material under section 29(3).

As a result, the agency could not rely on section 29(1)(b) to withhold the information.

The complaint was resolved by the agency supplying the complainant with a summary of the information supplied by the referees. As a result, the complaint file was closed.

December 2010

Access to personal information - real estate agency - referees - unwritten information - evaluative material - other benefits - summary of personal information - settlement - Privacy Act 1993, principle 6; sections 29(1)(b), 29(3)