1 Feb 2007, 09:00

A man asked for access to his full records in the course of a dispute with his bank.

The bank was incorporated in Australia, as well as in New Zealand. The man's access request went to the Australian section of the bank, and was not quickly redirected to New Zealand for action. As a result, there was a delay before the man received his records. The bank apologised to him for the delay. I considered this was an appropriate response in the circumstances.

Although the bank provided most of the records, it withheld some emails under section 28(1)(b) of the Privacy Act. The emails, broadly speaking, contained information about the bank's procedures and policies to deal with debts owed by its customers.

Section 28(1)(b) provides that an agency may withhold personal information from the person concerned if providing the information “would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information.” Section 28(2) then states that the information may not be withheld “if, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make the information available.”

The man complained to us about the refusal to provide this remaining information and I investigated the complaint.

I informed the man that it was not clear that the emails contained personal information about him (as that term is defined in section 2 of the Privacy Act). While his name appeared in the title line of the emails, the actual information was general in nature. Also, it had not been used to determine the outcome in the dispute that the man had with the bank. It was therefore not information about him and he did not have a right to access it.

I also informed him that, in my provisional view, even if it were personal information about him, section 28(1)(b) permitted the bank to withhold the information from him. The information was commercially sensitive. Its release clearly could prejudice the bank's commercial position. Also, it did not appear that there were any public interest reasons for making the information available in these circumstances.

The man was unwilling to accept my opinion, but raised no arguments that were relevant to the substance of his complaint. He also indicated that he wanted the investigation discontinued so that he could take the matter to the Tribunal. Since I had already provided as much advice as I could about the relevant provisions of the Act, so that he could calculate his chances of success in Tribunal proceedings, I concluded that further investigation was inappropriate. I therefore discontinued the investigation under section 71(2) of the Act.

February 2007

Access to personal information – bank – prejudice to the commercial position of the agency – principle 6, section 28(1)(b)

Personal information – bank – information about policies and procedures – section 2 “personal information”