14 Jan 2020, 12:00

A mother whose three young children were taken into the care of Oranga Tamariki (OT) complained to our Office after information she requested from the agency was released with substantial redactions.

Principle 6 of the Privacy Act

The mother’s complaint raises issues under principle 6 of the Privacy Act. Under principle 6, individuals have a right to access personal information held about them by agencies. Information can only be withheld if an appropriate Privacy Act withholding ground applies.

Grounds for withholding include:

• Maintaining security, defence or international relations
• If the disclosure involves unwarranted disclosure of the affairs of another individual or deceased person
• If disclosing information would breach an express or implied promise to maintain confidentiality

The investigation

Our investigator reviewed the redacted information and the accompanying withholding grounds.

OT had withheld information under four different grounds provided under the Privacy Act.

1. Section 27(1)(c) – disclosure of the information would prejudice the maintenance of the law
2. Section 29(1)(a) – disclosure of information would involve the unwarranted disclosure of another person’s affairs
3. Section 29(1)(f) - disclosure would breach legal professional privilege
4. Section 7(2) – override provision - in reliance on s11B Family Courts Act

As a social agency, OT held many documents connected to the mother and her children, some of which pertained to Family Court proceedings. Section 11B of the Family Courts Act says that a person may not, without the leave of the court, publish a report of proceedings that includes identifying information for anyone under 18 that is a subject of or party to proceedings. OT relied on this provision to withhold the documents that it held relating to the Family Court.

We did not consider that OT providing information requested under the Privacy Act would be a “publication”. The documents in question were not a “report of the proceedings”. Therefore, we did not accept that section 11B of the Family Courts Act operated as an override to the Privacy Act.

OT then released more information to the mother, including some documents relating to the Family Court. Other Family Court documents remained withheld. The High Court case Simes v Legal Services Commissioner [2017] NZHC 2331 found that certain reports and plans are commissioned by the Family Court on a confidential basis and only the Court can decide to waive the confidential status of the material.

Having reviewed the material that was not released to the mother, we determined that information was in the custody and control of the Family Court, not OT. Courts and tribunals do not fall under the jurisdiction of the Privacy Act as they are not considered agencies.

We advised the complainant that if she wished to access the remaining information, she would need to make enquiries with the relevant court. We also advised that if she wished to take the matter further, she could take her case to the Human Rights Review Tribunal. We then closed the file.