Two people complained that New Zealand Customs disclosed to Western Samoa Customs certain personal information about them. The events occurred after they left New Zealand for a holiday in Western Samoa. The complainants alleged that Western Samoa Customs was informed that one of them was a known drug user and HIV-positive, that the other was identified as travelling with the first complainant, and that their travel plans seemed suspicious.

The Facts

NZ Customs (Customs) disclosed information to the National Drug Intelligence Bureau (NDIB) requesting that Western Samoa Customs (WS Customs) be contacted. The information was duly relayed to WS Customs. Following their arrival in Western Samoa both complainants were detained and questioned by a number of authorities. The first complainant was subsequently requested to leave Western Samoa.

The NDIB is an organisation comprising of members of the Police, Customs and Health departments. Although it would often act autonomously, in this instance that information was faxed by NDIB staff to WS Customs on Customs' request. Section 126(2) of the Privacy Act provides:

Anything done or omitted by a person as the agent of another person shall, for the purposes of this Act, be treated as done or omitted by the other person as well as by the first-mentioned person, unless it is done or omitted without that other person's express or implied authority, precedent or subsequent.

I formed the opinion that NDIB acted as Customs' agent in this matter. Therefore, I treated the disclosure made by NDIB as having been made by Customs. The next step was to consider whether Customs made the disclosure in accordance with principle 11.

First Complainant

Customs suggested that principle 11(a) applied to the disclosure of information about the first complainant. Principle 11(a) provides:

An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds

(a) That the disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained.

Customs stated that one of the purposes for which they collected information about drug use was to disclose it to other agencies if a threat to the border was posed. Customs submitted that if information was not supplied about suspected drug traffickers, overseas agencies would not reciprocate. The exchange of information between such law enforcement agencies, both in New Zealand and overseas, was vital to the ability of New Zealand law enforcement agencies to carry out their functions. The information disclosed about the first complainant was that he was 'a known drug user' and that he was HIV-positive.

I accepted that Customs would intend to disclose information indicating that an individual posed a threat to the border because of previous drug use, but that only justified the release of drug-related information. It did not justify the release of information about the individual's HIV status. I did not consider that disclosure of the first complainant's HIV-positive status to an overseas customs agency was one of the purposes in connection with which Customs had obtained this information.

Customs also suggested that principle 11(f) applied to the disclosure of information about the first complainant's HIV status. Principle 11(f) provides:

An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds, -

(f) That the disclosure of the information is necessary to prevent or lessen a serious and imminent threat to -

(i) Public health or public safety; or(ii) The life or health of the individual concerned or another individual..

Customs stated that they disclosed information about HIV status in order to prevent or minimise a serious and imminent threat to the life or health of another individual. They considered they had a reasonable belief that the first complainant could have been carrying used needles because of his history of IV drug use. In view of his HIV status, they considered that the risk of infection from needlestick injury to a customs officer searching the baggage posed a serious and imminent threat to the life or health of that officer. Customs submitted that disclosure of this information was the only way to prevent or lessen the threat to a WS Customs officer as it would clearly indicate the nature of the risk and enable appropriate measures to be taken during any search.

I considered that a threat of needlestick injury would be serious and imminent only if there was a high degree of likelihood that the baggage contained used needles and if it would be searched by a customs officer in Apia. It was clear from the information Customs had available to it that the first complainant had never been found with needles or drugs in his possession. His past patterns of behaviour did not indicate that he would attempt to carry needles or drugs through Customs in his baggage. It was not clear to me that there was a serious and imminent threat in these circumstances.

In any case, the risk of injury from a needlestick is not limited to those with HIV. There are many blood-borne pathogens, such as hepatitis, which can be transmitted through used syringes. Furthermore, it should not be assumed that all people who are HIV-positive use intravenous drugs. Accordingly, I considered that the risk to WS Customs officials was more properly characterised by the use, or possible use, of intravenous drugs, rather than the presence of a particular pathogen. Principle 11(f) requires that the disclosure be necessary to prevent or lessen the threat. If an agency disclosed more than was necessary, that disclosure would not be protected. In this case, Customs did not limit the disclosure to information about the first complainant's drug use or possible drug use. By disclosing his HIV status, Customs did not limit the disclosure to that information which was necessary to reduce the threat. For these reasons, I formed the opinion that the disclosure of the first complainant's HIV status was not allowed by principle 11(f) and that Customs had breached principle 11 in these circumstances.

Section 66 of the Privacy Act provides that an action is an interference with the privacy of an individual if it breaches an information privacy principle and, in my opinion, the action:

(i) Has caused, or may cause, loss, detriment, damage, or injury to the individual concerned; or(ii) Has adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual; or(iii) Has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.

The first complainant was questioned about his HIV status, sexual orientation, drug use and possession of drugs. He was served with an order requiring him to leave Western Samoa. His holiday plans were disrupted in what I considered to be very distressing circumstances. I concluded that the first complainant's interests had been adversely affected and that he had suffered significant injury to his feelings and significant loss of dignity.

It was my final opinion that the breach had caused an interference with the first complainant's privacy.

Second Complainant

Customs also disclosed information about the second complainant. The faxed message to WS Customs stated that the second complainant was travelling with the first complainant. It also suggested that their travel intentions appeared to be suspicious. Customs submitted that because the second complainant was a travelling companion of a known drug user, that information would be of interest to overseas law enforcement agencies with border control responsibilities.

I formed the opinion that the fax message implied the second complainant might have presented a threat to the border in his own right. This allowed the overseas authority to infer that the first and second complainants might have been working together to break the law. By failing to clarify that Customs were primarily concerned with the threat posed by the first complainant, the second complainant was implicated in that threat. It was not made clear that the sole reason for disclosing the second complainant's name was because he was travelling with the first complainant.

In the circumstances, I formed the opinion that the disclosure of this information breached principle 11, as I did not consider that any of the exceptions contained in principle 11 applied in these circumstances to the disclosure of this information.

I also formed the opinion that the disclosure amounted to an interference with the second complainant's privacy. His interests were adversely affected by being subjected to similar questioning to the first complainant and his holiday plans were also disrupted. I formed the opinion that the second complainant had suffered a significant injury to his feelings and a significant loss of dignity in terms of section 66 of the Privacy Act.

Settlement attempted

Breaches of principle 11 occurring before 1 July 1996 may not be referred to the Complaints Review Tribunal. Principle 11 is not enforceable in the ordinary courts of law. In view of this, and in accordance with my obligation to attempt to secure settlement of complaints, I recommended that Customs should formulate a proposal for the settlement of this complaint. I suggested this could include a written acknowledgment of the distress suffered by the complainants and an offer of some financial compensation.

I also noted that sections 281 and 282 of the Customs and Excise Act 1996 would address most, if not all, of the issues I had considered, should they arise in the future. That Act, which came into force on 1 October 1996, should provide a mechanism for clarity about the information which may lawfully be disclosed to overseas customs agencies and the purposes for which it can be used. It specifies the information which may be disclosed pursuant to agreements between the Chief Executive of Customs and overseas agencies. These agreements must specify the uses to which the information may be put and must limit the agencies to which the information may be disclosed by the overseas agency. The information which may be disclosed pursuant to these agreements includes:
- Airline passenger and crew lists;
- Past travel movements of specified persons;
- Previous convictions of specified persons;
- General history of specified persons including associates and networks;
- Modus operandi of specified persons;
- Details of known or suspected involvement of persons in illicit activities.

Most, if not all, of the information disclosed about the two complainants seems to fall within one or more of the categories listed above. Had this Act been in force at the time Customs made the disclosure, and had the disclosure been made in accordance with ss 281 and 282 of the Customs & Excise Act, it is likely that the Privacy Act would not have applied to the disclosure. In view of this, I considered that this complaint could be settled without setting a precedent which might open a floodgate of claims.

The Comptroller of Customs took advice after receiving my opinion on this complaint. The Comptroller acknowledged that the complaint raised significant privacy and human rights issues in an area with little, if any, precedent. The Comptroller remained of the view that NZ Customs had reasonable grounds for disclosing the information about the two complainants to Western Samoa Customs. He considered that the information disclosed about the second complainant was simply that he was travelling with the first complainant and that this did not do the second complainant any unfairness. Customs had previously noted that the second complainant remained in Western Samoa after the first complainant left. The Comptroller did not accept my recommendation.

In the circumstances, I could not take any further action. I discontinued my investigation.

March 1997

Indexing terms: Disclosure of personal information - New Zealand Customs - Disclosure of HIV positive status - Serious and imminent threat of needlestick injury - Information privacy principle 11