1 Feb 2007, 09:00

The Ministry of Social Development was investigating the complainant for alleged benefit fraud. The investigation was initiated following news reports that indicated the complainant was engaged.

An investigator from MSD telephoned the journalist responsible for the news report and left a voicemail message. This message disclosed the investigator’s name and occupation, and the fact that the investigator wanted to interview the journalist because she had written the article about the complainant.

When contacted by the journalist the MSD investigator declined to comment about the investigation. The journalist then published an article to the effect that the complainant was under investigation.

Disclosure

I was satisfied that MSD disclosed to the journalist that the complainant was under investigation for benefit fraud. I considered the fact that the journalist had been contacted by a MSD investigator would naturally lead the journalist to make this assumption. This inferred that the complainant was being investigated.

I was not convinced that MSD told the journalist that the complainant was being investigated for failing to reveal that she was in a relationship. However I was satisfied that the journalist would have concluded this in light of the information that the investigator was obliged to reveal – namely that she was an investigator and sought information regarding the media attention the complainant had received. I was satisfied that the journalist would naturally have concluded that the complainant was under investigation.

Principle 11

Principle 11 of the Privacy Act provides that where an agency holds personal information, it must not disclose that information unless an exception applies.

MSD submitted that the exception at principle 11(e)(i) applied. This allows an agency to disclose information whether disclosure is necessary to avoid prejudice to the maintenance of the law, including the detection and investigation of offences.

MSD stated that its investigator approached the journalist to obtain information about possible offences committed by the complainant. Any information disclosed in the course of this process was incidental to the investigation.

I agreed that that the journalist was a potential witness in the investigation. If MSD cannot interview witnesses, its ability to investigate instances of benefit fraud would be severely compromised. The wider policy issues surrounding the conduct of MSD must also be considered, as one of its functions is to monitor the use of public funds. The power to investigate potential misappropriation of these funds is integral to its function.

On the information available to me I was satisfied that MSD did not breach principle 11, as its wider statutory function includes the investigation of potential offences involving public funds. I did not approach the journalist to verify the information because of the risk of further publicity for the complainant.

Conclusion

As a result of this investigation MSD put new processes in place for investigators to follow when it appeared that a journalist may hold information of use to an investigation.

Investigators were advised that it is unacceptable to question journalists unless it was absolutely necessary. An investigator will be required to demonstrate that the information believed to be held by the journalist is absolutely essential to the investigation and that it cannot be acquired elsewhere.

I also advised MSD that contacting journalists to be witnesses in an investigation carried significant risks of unwanted and very damaging publicity for the people under investigation. Although I was satisfied that MSD was justified in contacting the journalist in this particular situation, I would be concerned if it were to be seen as a common course of action.

As I did not find MSD had breached principle 11, I could take no further action. I advised the complainant of her right to take this case to the Human Rights Review Tribunal and closed the file.

August 2007

Disclosure of personal information – Ministry of Social Development – Article about complainant published in newspaper - Ministry employee contacted journalist – MSD reasonably believed it had to disclose