Introduction
If you’ve ever wondered about the interplay between:
- section 7 of the Privacy Act 1993 or its successor section 24 of the Privacy Act 2020; and
- certain provisions relating to court processes and powers in the Oranga Tamariki Act 1989, the Care of Children Act 2004, the Children and Young Persons Act 1974, the Child Welfare Act 1925, the Guardianship Act 1968, and the District Court (Access to Court Documents) Rules 2017 or Family Court Rules 2002,
wonder no more. Today the High Court, through the judgment of Palmer J, released an erudite decision on the topic in the case of H v Attorney-General [2024] NZHC 2317. Reading the judgment is a bit like watching Tetris pieces fall into place, on this occasion in favour of the plaintiffs.
The key point is that the rights of claimants to access their personal information under the Privacy Acts are not limited by certain specific provisions in welfare legislation and court rules.
Summary
There is no need for me to summarise Palmer J’s judgement, as His Honour has provided a helpful summary at the beginning of his judgment:
[1] The plaintiffs are survivors of abuse which they say they suffered while in state care. They have filed or intend to file proceedings suing the Attorney-General, on behalf of the Ministry of Social Development (MSD). The plaintiffs have expressed an intention to resolve such claims through MSD’s alternative dispute resolution process. To assist with this, the plaintiffs have requested access to their state care records from MSD, which has withheld or redacted parts of their records under the Privacy Act 1993 (the 1993 Act) and the Privacy Act 2020 (the 2020 Act) (together, the Privacy Acts). MSD says that reports and plans ordered by and furnished to courts need to be requested from the courts. The plaintiffs seek declarations that the Privacy Acts do not provide a basis for the relevant government agency to withhold from them their own personal information.
[2] The issue is whether the rights of claimants to access their personal information under the Privacy Acts are limited by specific provisions in welfare legislation and court rules. I conclude they are not. The texts of the Privacy Acts, interpreted in light of their purpose and context, recognise the rights of the plaintiffs to access their own personal information records as adults. The specific provisions of most of the welfare legislation, and the court rules, and provisions empowering the making of court rules, do not impose a prohibition or restriction, or regulate the manner in which information is to be made available, in relation to the personal information of the child or young person once they are adults, for the purposes of ss 7 or 24 of the Privacy Acts. To the extent some provisions in welfare legislation do have that effect, nothing in the application of IPP 6 or 11, in the context of those requests from adults, derogates from, limits or affects those provisions. Accordingly, the government agencies are bound by the Privacy Acts to respond to those persons’ requests. Unless a court has ordered that specific personal information not be provided to the person concerned, or another exception in the Privacy Acts applies, the Agencies must provide the information to the person concerned.
[3] The Crown has changed its position in relation to this legal issue several times. And survivors of abuse in state care cannot reasonably be expected to have confidence in the Crown’s word that it will abide by the decision of the Court without a formal order being made. Accordingly, I declare that the plaintiffs’ rights as adults, to access their own personal information under the Privacy Acts, in documents that are held by the defendant agencies which were ordered to be created by courts, are not limited, under s 7 of the Privacy Act 1993 or s 24 of the Privacy Act 2020, by the provisions, considered in this judgment, of the Oranga Tamariki Act 1989, the Care of Children Act 2004, the Children and Young Persons Act 1974, the Child Welfare Act 1925, the Guardianship Act 1968, and the District Court (Access to Court Documents) Rules 2017 or Family Court Rules 2002.
Essential reading
Looking beyond this case, I note that the interplay between:
- specific statutory provisions that contain information-related powers, discretions and prohibitions; and
- the Privacy Act’s information privacy principles,
is not always straight-forward, especially when the interplay is not expressly addressed in the specific statutory provisions (some provisions are clear on how they affect the Privacy Act, some are not). This decision contains a number of statements of principle that practitioners may find helpful when scratching their heads over such issues. To my mind it is essential reading for all who find themselves in that position. For example, lawyers and privacy practitioners working in this area are likely to find these paragraphs of the judgment interesting and potentially helpful in resolving statutory interpretation issues that might crop up from time to time, especially when there’s a perceived conflict between IPP6 and other statutory provisions, but potentially in other situations too: paragraphs 41, 42, 44, 56, 60-66, 71-73, 76-77, 83-84, and 92-94.