1 Feb 2003, 09:00

A man was involved in a car accident and charged with careless use of a motor vehicle. A police constable delivered a court summons to the man's mother's address, although he did not live there. The mother claimed she told the constable that her son did not live at her house, and gave his usual address.

The mother and the constable discussed the man's involvement in the accident. The man's four year-old niece and eight year-old son overheard this discussion.

The man complained to me that the disclosure of information about the accident and the summons amounted to an interference with his privacy. After investigating the complaint, I formed the view that the Police had breached information privacy principle 11.

Principle 11

Principle 11 provides that an agency holding personal information must not disclose the information unless it believes on reasonable grounds that one of the exceptions applies. The Police argued that disclosing the fact of the court summons to the mother was permissible under principle 11(e)(i). This exception allows an agency to disclose personal information where that disclosure is necessary to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences.

The Summons

The procedure for serving a summons is set out in section 24 of the Summary Proceedings Act 1957. The constable believed she could serve the summons on the mother because of section 24(1)(b) of that Act:

Section 24(1)

Every summons to a defendant and every other document which is required to be served on a defendant shall be served on him in one of the following ways:
(b) By being left for him at his place of residence with a member of his family living with him and appearing to be of or over the age of 18 years.

Had the man resided with his mother, serving the summons in accordance with section 24(1)(b) would not have raised issues under principle 11, because the specific requirements of section 24(1)(b) would have taken precedence over the privacy principles (Privacy Act 1993, section 7). However, the man did not reside with his mother.

Where an agency's actions are prescribed by an Act, I do not accept that when that Act is not followed the action may instead be permitted under the exceptions provided by the Privacy Act. While serving a summons could be seen to fit within the 'maintenance of the law' exception (principle 11(e)(i)), I was not persuaded that non-compliance with principle 11 was necessary, particularly when there was a prescribed statutory procedure in place that regulated the manner in which a summons could be served.

I took the view that serving the summons on the mother was a disclosure of personal information and was in breach of principle 11.

Disclosing information about the accident

The Police said that the constable's action in discussing the accident with the mother did not amount to a disclosure, as she was already aware of the accident. From notes the mother made of the discussion, it appeared that she had been aware of many of the details of her son's accident.

I looked at the meaning of the term 'disclosure'. The Complaints Review Tribunal in A and A v G (CRT 8/99) commented that the word 'disclose' is not defined in the Privacy Act and appeared not to have been the subject of any New Zealand legal authority, but had been defined in the English courts. The Tribunal cited two authorities. In A-G v Associated Newspapers Ltd ¹⁹⁹⁴ 1 All ER 556 it was defined as 'to expose to view, make known or reveal'. In Bank of Credit and Commerce International (Overseas) Ltd (in liq) v Price Waterhouse ¹⁹⁹⁷ 4 All ER 781 it was accepted that 'to disclose information normally entails communicating information to someone who does not know it already. It means to bring to light or reveal something of which the third party was previously unaware'. The Tribunal considered these definitions could be applied when interpreting the Privacy Act but added 'in any event the circumstances in which the statement was made should be taken into account in the determination whether there was a disclosure in terms of IPP 11'.

In this instance it was difficult to identify what new information the mother learnt as a result of her discussion with the constable. However, there were two factors which I felt supported the view that there was disclosure of previously unknown information. First, the Police told me that the constable's response to the mother's criticism of the decision to charge her son was to say that there was another side to the story and then provide it. The second relevant consideration - related to the first - was that, even if the mother had possession of all the facts, she would not have been aware of the Police perspective on the matter. These factors led me to the inevitable conclusion that there had been a disclosure of information for the purposes of principle 11.

Harm

Section 66 of the Privacy Act provides that there will be an interference with the privacy of an individual where an action has breached an information privacy principle, and that action has caused or may cause loss or damage of the type set out in section 66(1)(b).

The man submitted that he felt humiliated as a result of the disclosure. He said that he did not think it appropriate for the Police to discuss the matter with his mother. He felt that he had been treated as a child, and had suffered a significant loss of dignity. The man advised me that from the time of the disclosure until the charge was withdrawn, his eight year-old son was anxious about what would happen to his father. The man said that this put undue stress on him.

I accepted that the constable may have been unaware that there were children within earshot, and that the mother's question contributed to the constable's decision to engage in debate. However, but for the constable's failure to follow the procedure set out by section 24 of the Summary Proceedings Act the situation would not have arisen.

I formed the opinion that the man had suffered harm within the terms of section 66(1)(b).

I raised the possibility of settlement with the Police. The Police offered $1,000 in full settlement, which the man accepted. On that basis I discontinued my investigation.

June 2003

Indexing terms: Disclosure of personal information - Police - Summons incorrectly served - Police discussed accident details with third party - Meaning of disclosure - Summary proceedings Act 1973, s 24 - Privacy Act 1993, s 66(1)(b) - Information privacy principle 11