1 Feb 2003, 09:00

As a result of a conversation with a Child Youth and Family Services (CYFS) social worker, a woman discovered that an allegation of sexual abuse had been made against her by her daughter, some 13 years earlier. The woman had never been contacted by CYFS in relation to the allegation, and had no previous knowledge of it.

The woman's solicitor wrote to CYFS requesting access to the portion of its files containing the sexual abuse allegation. CYFS withheld the information under section 29(1)(a) of the Privacy Act 1993.

Following discussions with my office, CYFS released the source of the information and a summary of the allegations to the woman, but not the details of the allegations. The woman said this did not resolve her complaint as she wished to be able to respond to the details of the allegations. I considered the complaint further under principle 6 and section 29 of the Act and formed the view that CYFS' decision to release a summary only was justified.

Section 29(1)(a)

Principle 6 entitles individuals to access personal information an agency holds about them, subject to a number of good reasons for refusal. In this case, CYFS argued that section 29(1)(a) provided good reason to withhold the information. This section requires an agency to satisfy two criteria in order to refuse access:
- that disclosure of the information would disclose the 'affairs' of another person; and
- that such a disclosure would be 'unwarranted' in the circumstances.

The meaning and scope of 'affairs' has been held by the Complaints Review Tribunal to refer to 'the ordinary pursuits of life, business dealings, public matters' (O and Others v N CRT 19/94, decision no. 4/96). 'Affairs' generally requires a course of conduct on the part of the individual, although a single event or action which relates to a course of conduct by that individual might be construed as their 'affairs'.

'Unwarranted' has been understood in this context to mean 'unjustified' or 'without good or sufficient reason'. This requires the weighing of the parties' respective and competing interests in order to identify whether the refusal of access is justified in the circumstances.

Where the information involves an allegation against the requester, the agency must also consider the importance to a requester of knowing what has been said against him or her and, on the other hand, the rights of the individual who made the allegations (and any other people involved in the matter). The agency should also consider wider interests, such as the public interest in the free flow of information to the agency; whether the agency intends to act, or has acted, upon the information provided by the informant; and whether the requester's interests in receiving this information can be met in any other way.

The entitlement to access under principle 6 should not be put aside lightly, particularly where the information involves serious allegations against a requester. In this case, the woman's interest in receiving the details of the allegations made against her weighed heavily in her favour in the balancing exercise that CYFS was required to conduct.

However, account must also be taken of the privacy interests of others. CYFS told me that it considered that the interests of the daughter in having the details of the allegations remain private outweighed the mother's interests in receiving those details.

From the material supplied to my office it was apparent that the disclosure of the details of the allegations would disclose the affairs of the daughter. I thought the disclosure would be unwarranted in the circumstances. I noted the personal and intimate nature of those details and the wider context in which the information had been supplied. The period of time that had elapsed and the fact that the daughter had established an appropriate relationship with the mother (which was at risk if the information was disclosed) were also relevant factors. Additionally, although CYFS did not intend to act upon the information in this case, it needed to ensure that the free flow of such information in the future was maintained.

Summary released

I thought that the balance struck by CYFS was the right one and that CYFS had a proper basis under section 29(1)(a) for its decision to release only a summary of the information held on its files.

I advised the woman of her right to refer the matter to the Human Rights Review Tribunal and closed my file.

June 2003

Indexing terms: Access to personal information - Child, Youth and Family Services - Refusal - Unwarranted disclosure of another's affairs - Meaning of 'affairs' and 'unwarranted' - Balance required - Summary supplied - Privacy Act 1993, s 29(1)(a) - Information privacy principle 6