1 Feb 2008, 09:00

A man was engaged in court proceedings with his former partner. He contacted the court to enquire about making an ex parte application - an application without notice to his former partner.

The court employee who answered his enquiry then contacted the man's former partner and told her about the man's enquiry. The man complained to us that the court employee had unjustifiably disclosed information about him.

Principle 11 prohibits an agency from disclosing any personal information that it holds, unless a relevant exception applies.

The Ministry of Justice argued that its employee's actions were those of a court in relation to its judicial functions”. Under section 2 of the Privacy Act, courts acting in relation to their judicial functions are not 'agencies' and are exempt from the privacy principles.

We investigated what had happened and we disagreed with the Ministry. The man had simply been making an enquiry, as any member of the public could do. He had not filed any papers. Matters had not reached the stage where the employee was acting as part of the judicial functions of the court. The Ministry was therefore an 'agency' under the Privacy Act for the purpose of this complaint.

The Ministry also argued that it could rely on the exception set out at principle 11(f)(ii) to allow the disclosure. This exception provides that an agency can disclose personal information if it has a reasonable belief that it is necessary to do so to prevent a serious and imminent threat to the life or health of an individual.

We were not convinced that the man’s enquiry indicated there was any threat to the life or health of the man’s former partner. The court employee was aware that the man had an acrimonious relationship with his former partner. However, there had never been any violence or threats of violence. If the man had gone on to make an ex parte application, it could certainly have resulted in some inconvenience and stress to the former partner. However, this was not enough to amount to a serious and imminent risk to her life or health

Since no other exception applied we were therefore satisfied that the Ministry had disclosed personal information in breach of principle 11.

For there to be an interference with privacy in disclosure cases an agency must not only breach principle 11, but the disclosure must also cause the individual some form of harm (section 66).

Section 66(1)(b)(ii) states that there will be an interference with privacy if the action has adversely affected or may adversely affect, the rights, benefits, privileges, obligations, or interests of the individual. Here, the man had lost his opportunity to file an application without notice to his partner. The court employee's actions had put the former partner on notice. This was sufficient to amount to an interference with privacy under section 66(1)(b)(ii).

Where we believe that there is an interference with privacy, and we do not succeed in settling the matter, we have the discretion to refer the complaint to the Director of Human Rights Proceedings. The Director then considers whether to take proceedings against the agency in the Human Rights Review Tribunal.

Here, we did not refer the complaint to the Director. This was for several reasons. There were some gaps in the documentary evidence which could have caused difficulties in proving the case to the satisfaction of the Tribunal. The man was ambivalent about whether he was seriously intending to file an application, so the exact level to which his interests had suffered was not plain. The Ministry had policies in place to prohibit and prevent the type of disclosure that took place here. This appeared to be an isolated incident of bad judgment by a court employee rather than a systemic problem. The Ministry had been able to reinforce its policies with its staff to help prevent recurrence. There was therefore little point in putting the complaint onto a litigation track.

However, we advised the man that he could bring proceedings in the Human Rights Review Tribunal himself if he wished. We then closed the file.

August 2008

Disclosure of personal information – government department – court employee – definition of “agency’ – “court acting in relation to its judicial functions” - whether there was serious and imminent threat to safety - Privacy Act 1993, section 2; principle 11(f)(ii)

Adverse consequences - adverse effect on rights, benefits, privileges – disclosure undermined ability to make ex parte application to court – Privacy Act 1993, section 66(1)(b)(ii)