Monday, December 03, 2018

Inquiries, the OIA, and the Privacy Act

The Sunday Star-Times had a significant story yesterday about unprofessional behaviour by MPI staff regarding environmental activist Pete Bethune, where they had referred to him in a derogatory fashion in internal emails, apparently because of his opposition to illegal fishing (which MPI is supposed to police). They even went so far as to refuse to act on complaints of illegal fishing in a marine sanctuary - a crime - simply in order to prevent him from being able to say complaining had been effective. The behaviour exposed is grossly unprofessional, and shames the New Zealand public service. Bethune is owed an apology for it, as is the New Zealand public. But there's another aspect to this, and that is that MPI refused to release some of the information they held about Bethune:

Following Stuff inquiries, Bethune asked the Ministry to disclose information it held on him, as required by the Privacy Act.

Acting deputy director John Walsh wrote back confirming Bethune was the subject of emails between staff and Thompson & Clark. But he declined to release them because they were part of the evidence passed to the SFO and SSC inquiries.

The legal grounds for withholding here is s27(1)(c) of the Privacy Act. The problem is that it may not actually apply to inquiries.

The issue is covered in the Law Commission's reviews of the Privacy Act and the Official Information Act (which has an identically-worded withholding ground). In the review of the Privacy Act, the Commission notes that the focus of the provision is the criminal law, but they suggest that it may be broad enough to apply to investigations (though they don't really address non-criminal ones). In the OIA review, the Comission's attitude has hardened:
The question is how far beyond the court process the maintenance of the law ground can extend. A number of agencies indicated that they use it to prevent prejudice to an inquiry or investigation which they are undertaking... We have doubts, which are shared by the Ombudsmen, about whether the “maintenance of the law” ground is appropriate in such cases. Its wording does not readily accommodate this use.
In the end, they recommended a separate withholding ground for formal, statutory inquiries. That recommendation has not yet been implemented, so any agency which purports to use s6(c) to withhold inquiry information under the OIA is likely acting illegally. That means you, NZDF.

The Commission's OIA conclusions about the lawfulness of using "maintenance of the law" provisions to withhold inquiry information are likely to also apply to the Privacy Act. Firstly, because of the identical wording and similar contexts. Secondly, because the OIA includes rights for legal persons to access and correct information about themselves broadly mirroring those of the Privacy Act, with similar withholding grounds. It would be odd if legal persons had stronger access rights than natural ones over their personal information. But most importantly, it is because privacy access rights are stronger than freedom of information access rights. The right of a person to access information about themselves is stronger than the right of a random member of the public to access that same information. So it would be odd if "maintenance of the law" was interpreted more narrowly in the OIA regime than the Privacy Act one.

The upshot of this: Bethune should challenge that withholding decision, as should anybody else who has this "inquiry" bullshit pulled on them under either Act.