1 Feb 2008, 09:00

A man needed urgent access to information held by the Child Youth and Family Service (CYFS) as part of a dispute about his immigration status. His lawyer made a request for access to the information, and explained that the request was urgent.

CYFS contacted the lawyer the day after receiving the request, to clarify how urgent it was. The lawyer did not specify a timeframe. Two days later, the man was deported. CYFS provided the requested information nine working days after the initial request, with some deletions under provisions of the Privacy Act.

The man's lawyer complained that CYFS had not treated the request with enough urgency and that there was undue delay in providing the information.

Urgency and undue delay

Section 37 of the Act states that if a requester asks that their request be treated as urgent, the requester must give reasons for the urgency.

The Act does not oblige an agency to always treat such a request urgently. However, agencies do have to provide information without 'undue delay'. This is because undue delay in making information available in response to an information privacy request is treated as a refusal to make that information available (section 66(4)). An undue delay can be an interference with privacy if there is no proper basis for the agency to withhold the information (section 66(2)).

If an agency has been told that there are genuine reasons for urgency, and that the information needs to be provided within a particular timeframe, this will be an important factor in calculating whether any delay is “undue” – that is, whether the delay is excessive or disproportionate. Other factors are also relevant, including the amount of information requested, the nature of the information, and ease of retrieval.

Here, while it was evident that there was some need for urgency, the lawyer's request did not make it clear what the level of urgency was and why urgency was important. For instance, the request did not state that the man was on the point of being deported. On the contrary, it stated that the removal process had been delayed. It was also not plain from the context how the information that CYFS held could be relevant to the issue of deportation. Once the man had been deported (three days after CYFS received the request), the level of urgency also diminished somewhat.

It was evident that CYFS did treat the request with considerable urgency. It attempted to clarify the request with the lawyer the day after receiving the request. It told him that it would provide access. It then gathered the information, of which there was a fair amount. Much of the material needed to be considered carefully because, for example, it contained information about other people as well as the requester. The decision about whether to provide the information was therefore not straightforward. CYFS sent the information to the lawyer nine working days after receiving the request.

We found that there was no undue delay in this instance. CYFS had done all it could to ensure that the information was provided as urgently as possible. While, in retrospect, it would have been better if the information could have been given to the lawyer earlier, the lawyer did not give CYFS clear enough reasons for it to have further accelerated the process.

We advised the man's lawyer of our opinion. We suggested that where, as here, there is a genuine need for urgency, requesters can assist departments by:

• clearly stating what information is required, for example in bullet-point form;
• clearly indicating how quickly they need to get the information, and why that level of urgency is necessary; and
• ensuring that the department has clear contact details for the requester.

The more assistance and clarity that a requester can provide to a decision-maker about what is needed and why it is urgent, the more likely it is that the information can be found, and quickly brought to the attention of the people within the department who have to make the decision on release.

Since we found that there was no interference with privacy here, we closed the file.

August 2008

Principle 6 – access to personal information – Department of Child Youth and Family – urgency – need to provide reasons for urgency - reasonable degree of urgency in circumstances – no undue delay in provision of information – Privacy Act 1993 principle 6; s 37; s 66(4); s 66(2)