24 Jan 2020, 09:00

A woman said Police put her safety and that of her husband at risk by disclosing information to the two men accused of killing their son. She complained to our office about the privacy breach which had caused her and her family “emotional harm and immeasurable stress”.

Police had given documents to the lawyers for the two accused men as part of the criminal disclosure process authorised by law under the Criminal Disclosure Act 2008 (CDA).

The woman said the material had included the couple’s full names, their relationship to their son and their places of work.

She and her husband felt “an overwhelming sense of exposure” because the two accused now knew their names and where they worked.

Our investigation

We contacted Police for their view. Under principle 11 of the Privacy Act, an agency that holds personal information must not disclose the information unless it believes on reasonable grounds that one of the exceptions to that principle applies.

The main legal questions were whether Police had breached principle 11 of the Privacy Act by disclosing information, and if the CDA overrode the Privacy Act in this instance.

Section 7 savings provision

Section 7 of the Privacy Act provides that nothing in the Privacy Act derogates from any provision in any other Act that authorises or requires personal information to be made available. In other words, the CDA could prevail over the Privacy Act in disclosing relevant information to defendants.

In responding to us, Police relied on s 12(2)(e) of the CDA, which they said overrode principle 11:

Criminal Disclosure Act, s 12(2)(e)

At any time after criminal proceedings are commenced …, the prosecutor must, if requested by the defendant in writing, as soon as is reasonably practicable disclose the following information to the defendant:

(e) a copy of job sheets and other notes of evidence completed or taken by a law enforcement officer that contain relevant information… 

The information disclosed was on a Police job sheet. However, it was our understanding Police had not received a request in writing when it was provided to the defendants’ lawyers. Because the information had not been requested in writing, we did not accept that the CDA overrode the Privacy Act in this instance.

Our preliminary view was that Police had breached principle 11. We were also satisfied this disclosure had caused the woman and her husband harm.  

Request made in writing

Police responded to correct our understanding that there had been no requests in writing for the information. The defendants’ lawyers had, in fact, made requests in writing, prior to the disclosure being made. One of the lawyers had specifically referred to section 12(2) of the CDA, while the other request referred to wanting general disclosure for the client.

Police also questioned our view that the CDA would only have prevailed over the Privacy Act had a request been made in writing.

Police argued that even if no written request had been made, s 12(2) of the CDA would prevail over the Privacy Act. To interpret the section any other way would be inconsistent with the purpose of the criminal disclosure regime, which is to promote fair, effective and efficient disclosure of information.

In the view of Police, s 12(2)(e) should be read as expressly authorising or requiring personal information to be made available to a defendant – whether or not a request had in fact been made to Police. Police commented, “The release of information to a defendant, once requested under section 12(2) is not discretionary. It is mandatory.” The provision for defendants to request in writing was not intended to prevent Police taking a responsible and proactive approach to disclosure under the CDA.

Police also said that making a distinction between a requested disclosure and a proactive disclosure was problematic because in the first case, there could be no harm found because the Privacy Act would not apply but in the second case, there could be harm as a result of the disclosure.

Police submitted they had not breached principle 11 because the disclosure provisions of the CDA applied and prevailed over the Privacy Act.

Unlike witnesses’ residential addresses, the CDA does not require Police to redact information about a witness’ workplace. Whether that information is redacted from a document provided under the CDA is therefore a matter of discretion (refer to ss 16 and 17 of CDA).

Conclusion

After careful reconsideration, we reached a final view that Police had not interfered with the woman’s privacy. We reviewed our analysis and concluded that, in the circumstances, s12(2)(e) of the CDA applied and overrode principle 11 of the Privacy Act.

We observed:

• Where the CDA was silent about whether a particular document or particular information had to be supplied, we were able to consider whether the information was relevant.
• However, in this case, the document that contained the information about the woman’s workplace was a Police job sheet that contained relevant information. That document had to be provided if a written request was made after criminal proceedings commenced.
• Police had raised an argument that proactive disclosures should also be governed by the same override provision. While we had doubts about whether proactive CDA disclosures would prevail over the Privacy Act, it was not necessary to decide in this particular case and we reserved our opinion for a case when it would be relevant.

The disclosure had evidently caused the woman significant distress. We noted that releasing workplace details could create an avenue for contact with a witness, and more care would have been desirable before releasing the information.

We decided there had not been an interference with the woman’s privacy in this instance. We informed her of her right to take the matter before the Human Rights Review Tribunal if she disagreed with our final view.