IN THE HUMAN RIGHTS REVIEW TRIBUNAL [2012] NZHRRT 17

Reference No. HRRT 026/2010

IN THE MATTER OF A CLAIM UNDER THE PRIVACY ACT 1993

BETWEEN GORDON HENRY HOLMES

PLAINTIFF

AND COMMISSIONER OF POLICE

DEFENDANT

AT DUNEDIN

BEFORE: Mr RPG Haines QC, Chairperson Ms W Gilchrist, Member Ms S Scott, Member

REPRESENTATION: Mr Holmes in person Ms A Russell and Mr R Moran for Defendant

DATE OF HEARING: 30 November 2011 and 1 December 2011

DATE OF DECISION: 31 July 2012

DECISION OF TRIBUNAL

Introduction

[1] By letter dated 30 September 2008 Mr Holmes requested access to the personal information held about him by the New Zealand Police in relation to the alleged theft of money from an ANZ Bank ATM machine. The Police did not respond to that request within the 20 working day period stipulated by s 40 of the Privacy Act 1993. When, following the intervention of the Privacy Commissioner, the Police by letter dated 20 January 2009 did reply, some information was withheld. In the main the Police relied on ss 6(c) and 9(2)(a) of the Official Information Act 1982. But to justify the withholding of some information the Police relied also on s 27(1)(c) of the Privacy Act 1993 (disclosure would be likely to prejudice the maintenance of law) and on s 29(1)(a) (disclosure would

involve the unwarranted disclosure of the affairs of another individual). As this Tribunal has jurisdiction only under the Privacy Act the issue in these proceedings is whether the information withheld under ss 27(1)(c) and 29(1)(a) of that Act should have been released to Mr Holmes.

The immediate background

[2] On 21 September 2007 a customer of the ANZ Bank situated on King Edward Street, South Dunedin, is said to have used her ATM card at the ANZ Bank ATM machine for the purpose of obtaining an account balance. She then went into the Bank to talk to a teller, apparently leaving her card in the machine. When she realised what she had done, she went back to the ATM machine. Her card was not there, so she went back into the Bank and reported it missing. While a Bank officer was issuing her with a new card it was discovered that $300 had been withdrawn from her account in the meantime. The customer reported the matter to the Police. Inquiries showed that according to the Bank’s records, Mr Holmes had used the ATM machine shortly after the customer allegedly left her card in the machine. It was in these circumstances that the Police wished to speak with Mr Holmes to find out what he could remember and whether he had seen anything that day which might help them with their enquiries. There was not then, and never has been, any suggestion that Mr Holmes was involved in the alleged theft.

[3] On 8, 10, 11 and 18 October 2007 Police officers visited Mr Holmes’ address to speak to him directly about the incident but did not manage to make contact with him. By letter dated 19 October 2007 Senior Constable Mal Parker wrote to Mr Holmes requesting his assistance in identifying the offender. Unfortunately this letter stated that the events occurred on 19 September 2007. This was an error. The correct date is 21 September 2007. The mistake has led to difficulty and confusion. In particular Mr Holmes has been anxious to ascertain whether there were two incidents or only one. He was at the Bank on 21 September 2007 but not on 19 September 2007. When he requested information about “19 September 2007” the Police responded with information relating to 21 September 2007 and in some respects the parties have been at cross purposes. Mr Holmes told the Tribunal at the hearing that if there has indeed been an error in ascribing the incident to “19 September 2007” the Police ought to have simply responded that because no incident took place on 19 September 2007 they hold no personal information about Mr Holmes in relation to that date and therefore there is no information to disclose.

[4] Be that as it may, when deciding what information to release in relation to the actual incident on 21 September 2007, the Police determined that there were good grounds under both the Official Information Act and Privacy Act to withhold certain information. That information can generally be described as follows:

[4.1] Personal information about the person who complained that $300 had been withdrawn from her account. The information includes her name, address, date of birth and other personal information.

[4.2] The names and telephone numbers of the ANZ employees with whom Police officers spoke when investigating the offence, except where Mr Holmes already knew the names.

[4.3] The names of the Police officers who held the investigation file, except where Mr Holmes already knew the names. The officers’ identification numbers were not withheld.

[4.4] Information held in the Police database and information concerning their investigations.

[5] Broadly speaking, the withheld information is in two categories. The first category comprises five pages which have been withheld in their entirety under s 9(2)(a) of the Official Information Act (protection of the privacy of a natural person) though in the course of the hearing the Tribunal was asked to consider the five pages in the context also of s 29(1)(a) of the Privacy Act. These pages contain no personal information about Mr Holmes. The second category comprises documents which have been redacted to remove the categories of information described in the preceding paragraph.

[6] The balance of the documents were disclosed to Mr Holmes in unredacted form.

More background – delay

[7] Before we address the pleaded withholding grounds under the Privacy Act it is necessary to supplement the background by mentioning that the present proceedings are the second brought by Mr Holmes before the Tribunal. His first proceedings complained of the out of time response by the Police to his personal information request. In Holmes v Commissioner of Police [2009] NZHRRT 15 (17 June 2009) this Tribunal, differently constituted, concluded that there had been non-compliance with the statutory 20 working day stipulation (a point conceded by the Police) and a declaration was accordingly made under s 85(1)(a) that there had thereby been an interference with Mr Holmes’ privacy. However, his claim for damages was dismissed on the grounds that there was no evidence that he had suffered any harm as a result of the admitted interference. The Tribunal declined on jurisdiction grounds the request by Mr Holmes that it adjudicate also on the withholding of information under ss 27(1)(c) and 29 (1)(a). The Tribunal stated at [26]:

We make it clear that it is not our task in this case to consider whether or not the Police are right in their assessment of those matters [the withholding under ss 27(1)(c) and 29(1)(a) of the Act]. The only topic that has been investigated by the Privacy Commissioner is that which relates to the delay in providing the plaintiff with so much of the information as has now been provided to him, and which falls within his information access request of 30 September 2008. The question of whether or not the Police decision to continue to withhold information on either or both of the grounds is justified, is a separate issue and one which – if it is pursued at all – would almost certainly first have to be the subject of a further complaint to the Privacy Commissioner. In the meantime, we do not have jurisdiction to deal with those matters ...

[8] Mr Holmes duly lodged a further complaint with the Privacy Commissioner and on the Commissioner finding no breach of Principle 6, these fresh proceedings were filed on 21 September 2010.

[9] Mr Holmes is a humble but nevertheless proud and outspoken individual. His life experiences have led him to be mistrustful of authority and his manner of expression can at times lead to misunderstanding. In his correspondence with the Tribunal in relation to these present proceedings (in HRRT 026/2010) he has expressed, in somewhat frank terms, dissatisfaction with the way in which he considers the previous Chairperson of the Tribunal conducted the first proceedings held at Dunedin on 15 June 2009. This led to that Chairperson issuing a Minute on 24 February 2011 recusing himself from the present proceedings which then stood adjourned until the current Chairperson was appointed in July 2011.

[10] By application dated 12 April 2011 the Commissioner applied for a preliminary hearing to determine whether the current proceedings should be dismissed under s 115 of the Human Rights Act 1993 (proceedings trivial, frivolous, vexatious or not brought in

good faith) or in the alternative on the grounds that they are an abuse of process. Mr Holmes filed cross-applications for a transcript of the hearing on 15 June 2009 and for the reinstatement of other proceedings earlier filed with the Tribunal but discontinued by him. A ruling on all applications was issued by the current Chairperson on 7 September 2011. For the reasons given in that ruling all applications were dismissed.

[11] So for different reasons there has been delay in bringing these proceedings to a hearing. It must also be acknowledged that since the hearing at Dunedin on 30 November 2011 and 1 December 2011 there has been further delay in the publication of this decision. The delay is regretted and an apology is tendered to the parties.

[12] It is now possible to turn to the legal issues raised by Mr Holmes’ request for access to the withheld information. First we note the procedure followed.

Procedure for determining whether information properly withheld

[13] Following the practice established in Dijkstra v Police [2006] NZHRRT 16, (2006) 8 HRNZ 339, Reid v New Zealand Fire Service Commission [2008] NZHRRT 8 and NG v Commissioner of Police [2010] NZHRRT 16, the opening submissions of Ms Russell were received in open hearing. So too was the evidence of Ms Rendall, a legal adviser employed by the New Zealand Police, in that her affidavit sworn on 18 October 2011 was read and received in open hearing. However, once the hearing reached the point where it was necessary for the Tribunal to see the withheld information itself the hearing was closed to all except for counsel for the Commissioner and Ms Rendall. In the closed part of the hearing the Tribunal received, in the absence of Mr Holmes, the closed evidence of Ms Rendall and a closed bundle of documents comprising the information withheld from Mr Holmes together with the documents (in unredacted form) earlier provided to Mr Holmes in redacted form. Once this process had been concluded the hearing returned to “open” format and Mr Holmes resumed participation in the hearing.

[14] As explained to Mr Holmes, this process has been devised by the Tribunal to accommodate those cases where the defendant agency cannot adequately explain the nature of the withheld information and its reasons for withholding it without compromising the very matters that the agency submits warrant the withholding of the information from the requester. In addition, the Tribunal needs to see the information in issue to form its own view as to whether or not the information ought to be disclosed. But the plaintiff cannot see the closed information unless and until the Tribunal decides that it ought to be disclosed. In fairness to Mr Holmes, he did not challenge the necessity for the Tribunal to follow this process.

[15] We address now the withholding grounds relied on by the Commissioner of Police. It is the Commissioner who must establish, to the balance of probability standard, that one or other of these grounds applies. It is not for Mr Holmes to establish that they do not apply. See s 87 of the Act.

Section 27(1)(c) Privacy Act – disclosure likely to prejudice the maintenance of the law

[16] Privacy Principle 6 provides that:

Principle 6 Access to personal information (1) Where an agency holds personal information in such a way that it can readily be retrieved,

the individual concerned shall be entitled—

(a) to obtain from the agency confirmation of whether or not the agency holds such

personal information; and (b) to have access to that information. (2) Where, in accordance with subclause (1)(b), an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information. (3) The application of this principle is subject to the provisions of Parts 4 and 5.

[17] Principle 6 is subject to Part 4 of the Act which prescribes the limited circumstances in which an agency may refuse access to personal information. Part 4 includes s 27 which relevantly provides:

27 Security, defence, international relations, etc

(1) An agency may refuse to disclose any information requested pursuant to principle 6 if the disclosure of the information would be likely—

(a) ... (b) ... (c) to prejudice the maintenance of the law, including the prevention, investigation, and

detection of offences, and the right to a fair trial; (d) ...

[18] As can be seen, s 27(1) permits an agency to refuse to disclose information if disclosure is “likely” to have any of the listed consequences. The standard of proof is not the balance of probabilities ie “more likely than not”. In this context “likely” means a distinct or significant possibility. To avail itself of one of the grounds in s 27, an agency must show there is a real and substantial risk to the interest being protected: Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA) at 391, 404 and 411 and Nicholl v Chief Executive of the Department of Work and Income [2003] 3 NZLR 426 (Rodney Hansen J) at 430. In Commissioner of Police v Ombudsman Cooke P, in relation to earlier but similar provisions in the Official Information Act 1982, stated that:

To cast on the Department or organisation an onus of showing that on the balance of probabilities a protected interest would be prejudiced would not accord with protecting official information to the extent consistent with the public interest, which is one of the purposes stated in the long title of the Act. At first sight it might seem otherwise, but what has just been said becomes obvious in my view when one considers the range of protected interests in s 6, including as they do, for instance, the security or defence of New Zealand, the New Zealand economy and the safety of persons. To require a threat to be established as more likely to eventuate than not would be unreal. It must be enough if there is a serious or real and substantial risk to a protected interest, a risk that might well eventuate ...

Whether such a risk exists must be largely a matter of judgment ... [Emphasis added]

[19] This passage has been applied by the Tribunal on a number of occasions. See for example Te Koeti v Otago District Health Board [2009] NZHRRT 24, Kaiser v Ministry of Agriculture and Forestry [2009] NZHRRT 10 and more recently Rafiq v Commissioner of Police [2012] NZHRRT 13.

[20] As to the withholding of information in the nature of Police intelligence as referred to by Ms Rendall, in Tonkin v Manukau District Court HC Auckland M No. 437/SW01, 26 July 2001 at [10] Rodney Hansen J observed in the context of criminal disclosure and the equivalent withholding ground in the Official Information Act that:

... I am of the view that these documents are entitled to the protection available under s 6(c) of the Official Information Act. In my view, it is necessary and desirable that Police officers should be able to communicate internally in writing without fear that matters of opinion and comment will later be disclosed. I see it as necessary to the efficient workings of the Police and in no way contrary to the right to a fair trial for internal memoranda to be protected from disclosure in

proper cases. Informal communications in which tentative, provisional and subjective views are expressed, must be a necessary part of the investigation and detection of offences. As long as they do not contain evidence which is not available from other sources, I see no threat to the administration of justices in their being protected by s 6(c) of the Act.

[21] The Commissioner accepts that Tonkin does not provide the Police with carte blanche to withhold any and all personal information about Mr Holmes. It must still be shown that disclosure of the information in question will be likely to prejudice the maintenance of the law. The concession is properly made. See the following observations in NG v Commissioner of Police at [45] and [46]:

[45] ... we think there are dangers in applying such a dictum too quickly or too widely. In the present case the starting point under Principle 6 is that, if the information is personal information about the plaintiff, then he has a right to have access to it unless good grounds for withholding it are established. In our view the observations in Tonkin do not create or recognise any special immunity for ‘internal Police communications’ (whatever that phrase really means). When it comes to dealing with a request for access under the Privacy Act, the reasons for withholding information that are set out in the Privacy Act are the only relevant touchstones. We do not accept that, of itself, the fact that the information at issue may have been an internal Police communication gives it any special status under the Privacy Act. [footnotes omitted]

[46] At the same time we recognise that there can be situations in which the prospect that an internal communication might have to be disclosed could have a negative effect on policing activities, such as to bring s.27(1)(c) into play. In fact, we have been persuaded by the argument for the Police that, in this case, there is one element of the information at issue which is an internal Police communication, and which has properly been withheld with reference to the grounds set out in s.27(1)(c).

[22] The important point emphasised by these cases is that a degree of secure internal communication of information (which includes the National Intelligence Application Information) is required for the Police to be able to perform effectively their law enforcement functions.

[23] We turn now to the documents themselves. In relation to the s 27(1)(c) category all information withheld was by way of redaction to documents otherwise disclosed to Mr Holmes. In her cross-examination of Mr Holmes, Ms Russell referred Mr Holmes to each of the documents so redacted and asked whether, if the redacted information related (for example) to Police investigation methods, he accepted that the Police were entitled to withhold the information. Mr Holmes fairly conceded that they would be so entitled. Nor did Mr Holmes seriously challenge the submission made by Ms Russell that there is a need to ensure that law enforcement tools, including some information contained within the NZ Police’s National Intelligence Application database, are in need of protection to ensure effective policing. In similar vein there was no substantive challenge to the need for informal Police communications by way of internal memoranda to be protected from disclosure in proper cases.

[24] On our inspection of the unredacted documents in the context of the closed hearing we were conscious of the fact that Mr Holmes could not himself see the documents nor could he make effective submissions on them. Our scrutiny was rigorous and took into account that s 87 of the Privacy Act places on the Commissioner the onus of proving exceptions to the Principle 6 right of access to personal information. Nevertheless, having given the redactions close and careful scrutiny, we are satisfied that the information withheld under s 27(1)(c) has been properly withheld under that section. Given the nature of the information we have seen, it is difficult to give precise reasons for our conclusion on an item by item basis without thereby providing or at least hinting what some of the information is. But as stated, after a “hard look” we are satisfied that the information has been properly withheld.

[25] We turn now to the second withholding ground relied on by the Commissioner, namely s 29(1)(a).

Section 29(1)(a) Privacy Act – unwarranted disclosure of the affairs of another

[26] Section 29(1)(a) of the Privacy Act provides:

29 Other reasons for refusal of requests

(1) An agency may refuse to disclose any information requested pursuant to principle 6 if—

(a) the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual or of a deceased individual

[27] This withholding provision has two limbs. First, that the disclosure of the information would disclose the affairs of another person and second, that such disclosure would be unwarranted.

[28] As to “the affairs of another individual” this Tribunal accepts that the name and personal details of the Bank customer (the “complainant”), of the ANZ employees and of the Police officers who held the investigation file fall within the meaning of “affairs” as it is used in section 29(1)(a). In the present case the real question is whether disclosure of the information would be “unwarranted” in the circumstances.

[29] The term “unwarranted” requires the Principle 6 right of access held by the requester to be weighed against the competing privacy interest recognised in subs (1)(a). As to how the balance is to be struck and a determination made whether disclosure of the information would involve the “unwarranted disclosure” of the affairs of another individual will depend on the circumstances. See Director of Human Rights Proceedings v Commissioner of Police at [63]. In that decision the Tribunal at [64] made reference to some of the considerations which can be relevant when weighing the competing interests:

[64] In her submissions Ms Evans suggested an helpful list of relevant considerations to inform the assessment, including:

[a] Whether the informant was willing to have his or her identity become known to anyone else at the outset. In a case where the only issue is whether or not access to the information by the subject of the information would amount to an unwarranted disclosure of the affairs of the informant, but the informant has never objected to the disclosure, then there would probably have to be some unusual feature to the evidence to justify a finding that s.29(1)(a) is engaged; [b] On the other hand, the fact that an informant may have expected or even stipulated for anonymity at the time of giving information will be a factor in the assessment, but it is not necessarily conclusive; [c] The nature of the information; [d] The characteristics of the informant, and his/her or its situation, and in particular the relationship (if any) that he/she or it has with the requester; [e] Whether disclosure of the identity of the informant is necessary in order to ensure that the requester has a full and fair opportunity to respond to allegations that have been made against him or her; [f] The size of the community in which the parties concerned live (in the sense that the revelation may have a disproportionate effect in a smaller community); [g] What kind of harm might be suffered by the informant should the requester become aware of his or her identity.

[30] As noted, in her cross-examination of Mr Holmes Ms Russell took Mr Holmes to each and every document in the open bundle which contained redactions said to relate to the name, address and personal information about the complainant. Mr Holmes readily accepted that were the redacted information to contain information of this nature,

he did not have a right to that information. A similar concession was made in relation to the details of the Bank employees whose identifying details had been withheld. As to the withholding of the names of Police officers Mr Holmes would concede only that the name of Senior Constable Mal Parker had not been redacted as his identity was already known and he also accepted that where Police names have been withheld their Police numbers are nonetheless disclosed, thereby permitting him to make enquiry about the file or to make complaints against identifiable officers. Mr Holmes did not accept, however, that the names of the Police officers should have been withheld from him. Nevertheless, in carrying out the required balancing exercise, the Tribunal is of the view that by permitting a means of identification albeit an indirect one, an appropriate compromise of the competing privacy interests has been achieved.

[31] The most important documents in the context of s 29(1)(a) are the five documents withheld from Mr Holmes in their entirety. Mr Holmes believes that these pages contain personal information relating to him. In cross-examination he accepted that were he to be mistaken in this regard and in particular should the five pages relate only to the complainant, the information had been properly withheld.

[32] In the context of the closed hearing these five pages also received close and careful scrutiny by the Tribunal. Our conclusion is that on any reading, the five withheld documents plainly relate exclusively to the complainant and do not at any point refer to Mr Holmes directly or indirectly. It follows that the five pages fall squarely within the ambit of s 29(1)(a) of the Act. The information has been properly withheld.

[33] As to the balance of the redacted information we similarly conclude that it relates to personal information concerning the complainant, the identity of the bank employees and of the Police officers involved in the inquiry. As to whether disclosure of the redacted information would involve the “unwarranted disclosure” of the affairs of another individual, we note that Mr Holmes’ purpose in these proceedings was not to uncover this information as such but rather to discover whether he is suspected of theft. He believes, partly because the letter from Senior Constable Parker gave the date of the incident as 19 September 2007 whereas later correspondence spoke of 21 September 2007, that he (Mr Holmes) is being “set up” for the theft. Mr Holmes is plainly suspicious of the Police and of officialdom generally. This is not said as a criticism. But having seen the withheld information we can say categorically and without hesitation that there is no evidence to support Mr Holmes’ genuinely held belief. To the contrary, the documents are consistent only with the position always taken by the Police, namely that Mr Holmes has only ever been a potential witness to the theft and has never been under suspicion. Given the purpose for which the information has been requested and the nature of the privacy interests of the complainant, bank employees and Police officers, we are of the view that the balance clearly falls on the side of the decision to withhold. After a “hard look” at the documents we are satisfied that the information has been properly withheld.

Summary of findings on the withholding grounds relied on by the Police

[34] The Police rely on ss 27(1)(c) and 29(1)(a) of the Privacy Act to withhold the information sought by Mr Holmes.

[35] For the reasons given, we are satisfied to the probability standard that both statutory grounds relied on by the Police have been established and it follows that the requested information has been properly withheld. It follows that these proceedings are dismissed.

Costs

[36] At the conclusion of the hearing Ms Russell advised that she had no instructions on costs.

[37] The Tribunal is aware that in the previous proceedings (HRRT 42/2008) Mr Holmes was ordered to pay the Police $5,500 notwithstanding that he had been successful in obtaining a declaration that the Police had interfered with his privacy and notwithstanding that he is an impecunious beneficiary. In the costs decision given on 30 July 2009 the Tribunal (differently constituted) stated that Mr Holmes’ impecuniosity would not be taken into account.

[38] Should the Police again seek an award of costs against Mr Holmes that application will, of course, be addressed on its merits. But the Tribunal as currently constituted may find it necessary to review the Tribunal’s previous jurisprudence on costs. On one view, it could be said that the human rights dimension to the Tribunal’s jurisdiction may not in the past have received sufficient consideration. There is an argument that the jurisdiction of the Tribunal under the Human Rights Act and Privacy Act may not necessarily be analogous to that of the civil jurisdiction of the High Court and District Court and that the rules relating to costs in civil proceedings before those courts cannot be readily transplanted into the human rights context without substantial modification.

[39] In particular when the Tribunal is confronted by an individual such as Mr Holmes (a beneficiary) it is difficult to be impervious to his poverty and to the very real consequences of a costs award. There was no embellishment when he said he had suffered enormous stress and sleepless nights. Even finding money for photocopying documents and postage for these proceedings has been a constant challenge. His physical challenges are also daunting. He cannot read without a large magnifying glass which he simultaneously holds close to his eyes and to the page. He has faced a thirteen kilometre round trip on foot from his home to the hearing, a trip he has made many times previously for the purpose of attending to correspondence in the preparatory stages of this case. The Tribunal knows that he went without food on the first day of the hearing and that he felt it undignified when the Tribunal offered him lunch. He said he has only two sets of clothes. One for summer and one for winter. He describes himself as “up to [his] neck in debt”. He feels humiliated and “left out of the system – everywhere I go I get the same treatment”. His vocabulary of “collusion, corruption, deceit and lies” are expressions of frustration but are too often taken literally. Asked to prove such allegations there is more frustration and more disbelief.

[40] On one view the jurisdiction of the Tribunal, particularly under the Human Rights Act and the Privacy Act, provides an avenue whereby the disempowered and excluded can access important rights, access which may be rendered meaningless were an unsuccessful challenge to “the system” be visited with a financially ruinous award of costs. In this regard useful reference may be made to Heather v Idea Services Ltd [2012] NZHRRT 11 at [11] to [18].

[41] It is not the fault of Mr Holmes that his present proceedings could not be determined by the Tribunal in the context of his first proceedings. Nor is it his fault that the Police letter dated 19 October 2007 mistakenly gave the date of the incident as 19 September 2007 instead of 21 September 2007, thereby giving credence to his belief that he was suspected of committing an offence.

[42] Should the Police apply for costs, the application will be dealt with according to the following timetable.

[42.1] Any application is to be filed and served, along with any submissions addressing the points we have outlined, within fourteen days after this decision is issued to the parties.

[42.2] Any notice of opposition by Mr Holmes to the making of an award of costs is to be filed and served, along with any submissions or other materials put forward in opposition to the application, within a further twenty-eight days.

[42.3] The Tribunal will then determine the issue of costs on the basis of the papers that will by then have been filed and served and without any further oral hearing.

[42.4] In case it should prove necessary, we leave it to the Chairperson of the Tribunal to vary the foregoing timetable.

............................................. Mr RPG Haines QC Chairperson

............................................. Ms W Gilchrist Member

............................................ Ms S Scott Member