Gorgus v Chief Executive Department of Corrections
[2024] NZHC 634
•25 March 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-588
[2024] NZHC 634
UNDER Section 123 of the Human Rights Act 1993 IN THE MATTER
of an Appeal from a decision of the Human Rights Review Tribunal
BETWEEN
ASHOR GORGUS
Appellant
AND
CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 12 February 2024 Appearances:
N W Taefi for Appellant
S B McCusker and A L Prestidge for Respondent
Judgment:
25 March 2024
JUDGMENT OF THE HONOURABLE JUSTICE GRICE M KEEFE & S STEWART
Introduction
[1] This is an appeal against a decision of the Human Rights Review Tribunal in relation to a claim brought by Ashor Gorgus against the Department of Corrections (Corrections),1 for interference with privacy under the Privacy Act 2020 (the Act).2 The issues involved relate to delays in responding to Mr Gorgus’ requests for information. The Tribunal found that Corrections interfered with Mr Gorgus’ privacy in certain respects, but declined to award damages for humiliation, loss of dignity and
1 Also referred to as the Department.
2 Gorgus v Corrections [2023] NZHRRT 22 [the Tribunal decision].
GORGUS v CHIEF EXECUTIVE DEPARTMENT OF CORRECTIONS [2024] NZHC 634 [25 March 2024]
injury to feelings under s 103 of the Act. The scope of this appeal is limited to the Tribunal’s decision not to award those damages.
Background
[2] This appeal concerns three requests for personal information made by Mr Gorgus to Corrections while he was in custody:
(a)request made to Corrections dated 9 July 2019 (the First Request).
(b)request made to Corrections dated 31 July 2019 (the Second Request).
(c)request made under the Official Information Act 1982 to a lawyer acting for Corrections, dated 21 October 2019 (the Third Request).
[3] While in custody Mr Gorgus was involved in several incidents, resulting in the generation of a number of Corrections reports. These included event review reports, use of force review forms, and incident information reports.
[4] The requests covered a number of incidents, however two incidents for which Mr Gorgus sought information are of particular note. The first of these took place in January 2019, when Mr Gorgus was alleged to have been standing over prisoners sparring or fighting in the prison laundry, where he was employed at the time (the Laundry Incident). The second incident occurred on 20 May 2019, when Mr Gorgus alleged that he was the victim of an unreasonable use of force and was unlawfully placed in segregation (the Use of Force Incident).
[5] In the First Request, Mr Gorgus asked for an event review report relating to the Laundry Incident (the Laundry Report). He also sought an event review report relating to the Use of Force Incident, incident reports, and an event review report and use of force documentation relating to an incident on 7 December 2018. The First Request was received by Corrections but was not logged into its management system until 18 November 2019. It was not actioned at the time.
[6] In the Second Request, Mr Gorgus again asked for the event review report relating to the Use of Force Incident, as well as further event review reports, file notes,
and incident reports, and a fact finder report relating to a staff assault in December 2017. The Second Request was received and logged by Corrections but was not actioned at that time.
[7] After receiving no formal response to the First Request and the Second Request, Mr Gorgus made a complaint to the Privacy Commissioner in November 2019.
[8] In the Third Request, Mr Gorgus asked for event review reports and use of force reports relating to the Use of Force Incident and the 7 December 2018 incident, the Laundry Report, and any other material completed by Corrections relating to the treatment of Mr Gorgus at Mount Eden Prison.
[9] The Third Request was received on 22 October 2019. Corrections acknowledged receipt of that request and sought an extension of the time to respond to 17 December 2019.
Corrections responded to all three requests on 17 December 2019 as follows:
(a)It provided the event review report, use of force reports and other information relating to the Use of Force Incident and the 7 December 2018 incident but redacted certain information in reliance on ss 27(1)(c) (prejudice to the maintenance of the law) and 29(1)(a) (unwarranted disclosure of the affairs of others) of the Act.
(b)It advised Mr Gorgus that the Laundry Report did not exist, so the request was declined under s 29(2)(b) of the Act (information not held).
(c)It withheld other documents entirely in reliance on s 29(1)(a) of the Act.
[11] Following the investigation by the Privacy Commissioner in July 2020, Corrections provided Mr Gorgus with certain information sought in the First and Second Requests which had previously been withheld, subject to certain redactions.
[12] Following some confusion by Corrections as to whether it held the Laundry Report requested, a redacted version of that report was provided to
Mr Gorgus in November 2021. That only occurred following the filing of evidence for the case in the Tribunal.
Grounds of Appeal
[13] The appellant’s primary ground of appeal is that the Tribunal was plainly wrong in finding that the interference with Mr Gorgus’ privacy did not cause him humiliation, loss of dignity, and injury to feelings (generally referred to as emotional distress). The additional ground of appeal is that the Tribunal erred in its approach to causation and conceptualisation of injury and dignity in the context of New Zealand’s international human rights obligations.
[14] The appellant contends that the Tribunal made errors of principle, failed to consider relevant matters, considered irrelevant matters, and otherwise was plainly wrong. In particular, the appellant submits that:
(a)The Tribunal erred in finding that the interference with the appellant’s privacy did not cause humiliation, loss of dignity and injury to feelings. This was plainly wrong and cannot be sustained in light of the evidence.
(b)The Tribunal erred in finding, as a matter of law, that a plaintiff must establish a material causal nexus between the interference with privacy and alleged humiliation, loss of dignity and injury to feelings before awarding any damages. This was an error of principle.
(c)The Tribunal failed to consider, in determining whether to award damages, New Zealand’s internationally recognised privacy obligations and the standards in relation to the privacy of personal information, including the Organisation for Economic Co-operation and Development (OECD) Guidelines and the International Covenant on Civil and Political Rights (ICCPR).
[15] The respondent supports the decision of the Tribunal. It says that the evidence before the Tribunal was insufficient to satisfy it that damages should be awarded to
Mr Gorgus for emotional distress. It says that the Tribunal was entitled to reach the decision it did based on the evidence that it heard.
[16] In relation to the second ground of appeal, the respondent says the legislation is clear that the award of damages is discretionary. It says that while the appellant suggests that all breaches of the privacy principles should result in damages, this is contrary to the legislative scheme, the wording of the Act, and the interpretation of the legislation by the Tribunal and the Courts.
Approach on appeal
[17] Appeals from the Human Rights Review Tribunal to the High Court are governed by s 123 of the Human Rights Act 1993 (HRA). Section 123(5) states that when determining an appeal from the Tribunal, the High Court has the powers conferred on the Tribunal by ss 105 and 106.
[18] It is well settled that s 123 provides for a general right of appeal, and the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar apply.3 This means that the appellant has the onus of satisfying the Court that it should differ from the Tribunal’s decision, and the Court must make its own assessment of the issues.4 The Court “has no duty to accord any deference to the original tribunal of fact”.5 However, it “may rightly hesitate” before concluding that findings of fact or degree made by the Tribunal are wrong, given its specialist expertise and that it had the benefit of hearing from witnesses first hand.6
[19] For appeals against decisions made in the exercise of a discretion, the criteria for a successful appeal are stricter than for a general appeal.7 The appellant must show that the Court below:8
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. See also
Wall v Fairfax New Zealand Ltd [2018] NZHC 104 at [14].
4 Ministry of Health v Atkinson (2010) 9 HRNZ 47 (HC) at [8].
5 Wall v Fairfax New Zealand Ltd [2018] NZHC 104 at [14].
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
7 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32], citing May v May (1982) 1 NZFLR 165 (CA) at [170].
(a)made an error of law or principle;
(b)took account of irrelevant considerations;
(c)failed to take account of a relevant consideration; or
(d)was plainly wrong.
[20] The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract, but the fact that a case involves factual evaluation and a value judgement does not of itself mean the decision is discretionary.9
[21] The Tribunal “may” award damages under the emotional damages head. The decision as to whether to award damages under s 103 is a discretionary matter. This appeal concerns the Tribunal’s decision to decline damages, so the appellant must show that the Tribunal made an error of principle, took account of irrelevant matters, failed to consider relevant matters, or otherwise was plainly wrong.10
Overview of relevant law
[22] The Privacy Act sets out a number of Information Privacy Principles under s 22. Relevantly to this case, Information Privacy Principle 6 (Principle 6) provides:
Access to personal information
(1)An individual is entitled to receive from an agency upon request—
(a) confirmation of whether the agency holds any personal information about them; and
(b) access to their personal information.
(2)If an individual concerned is given access to personal information, the individual must be advised that, under IPP 7, the individual may request the correction of that information.
(3)This IPP is subject to the provisions of Part 4.
9 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
10 Geary v Accident Compensation Corporation [2013] NZHRRT 34 at [190].
[23] An agency must respond as soon as reasonably practicable, and not later than 20 working days after the request has been received, and notify the requestor of whether or not it holds it personal information and how it will respond.11
[24] Section 103(1)(d) of the Act provides that damages may be awarded for an interference with privacy. The three heads are to be read disjunctively.12 The section insofar as is relevant reads:
103 Damages
(1) In any proceedings, the Tribunal may award damages against the defendant for an interference with the privacy of an individual in respect of 1 or more of the following:
…
(d) humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.
[25] Under the HRA, the Tribunal may award damages of up to $350,000 for emotional distress, or alternatively, may refer a matter to the High Court for a remedy exceeding $350,000.13
[26]We now summarise the decision of the Tribunal.
The Tribunal decision
[27] Before the Tribunal, Mr Gorgus claimed that Corrections interfered with his privacy by breaching Principle 6 under the Act. He sought release of the withheld information and damages of $40,000.
Interference with privacy
[28] Corrections accepted that it had interfered with Mr Gorgus’ privacy in respect of the First Request and the Second Request by failing to respond within the time
11 Privacy Act 2020 [the Act], s 44.
12 Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004 at [36]. See also Lochead-MacMillan v AMI Insurance Ltd [2012] NZHRRT 5 at [41.3] and Geary v Accident Compensation Corporation [2013] NZHRRT 34 at [148].
13 The Act, ss 92R–92U.
frame prescribed by the Act.14 The Tribunal found that there was no interference with respect to the Third Request, as the response by Corrections was not made with undue delay.15
[29] The Tribunal then assessed whether there were good reasons for Corrections withholding or redacting certain of Mr Gorgus’ personal information under s 29(1)(a) of the Act, on the basis that it would involve unwarranted disclosure of the affairs of another individual or was otherwise “out of scope”. It found that Corrections had “generally discharged” its burden of proving that the information was properly withheld in accordance with s 29(1)(a), or was otherwise not personal information.16 However, the Tribunal found that Corrections had not discharged that burden with respect to a “small amount of information”. In particular the Tribunal made the following adverse findings:
(a)Corrections should have reasonably determined that the Laundry Report was the information sought by Mr Gorgus and could not rely on s 29(2)(b) for withholding it, nor could it rely on s 29(1)(a) in its initial refusal to disclose the Laundry Report once it had been identified.17
(b)Corrections was not justified in relying on s 29(1)(a) in redacting the Laundry Report, because although it identified a small amount of information relating to other prisoners, that information was mixed with Mr Gorgus’ own personal information and the information was already known to him.18 The continued withholding of this information amounted to an interference with Mr Gorgus’ privacy.19
(c)The bulk of the Use of Force Review Forms dated 19 November 2018 and 24 May 2019 should be disclosed to Mr Gorgus.20
14 The Tribunal decision, above n 2, at [31].
15 At [30].
16 At [55].
17 At [41] and [42].
18 At [44].
19 At [55].
20 At [64].
Remedy
[30] The Tribunal made a declaration under s 102(2)(a) of the Act that Corrections had interfered with Mr Gorgus’ privacy, by failing to respond to the First Request and the Second Request, and in respect of the other breaches referred to above.21 It made orders that Corrections provide Mr Gorgus with the information that had been withheld in breach of his privacy.22
[31] As the Tribunal had found Corrections had interfered with Mr Gorgus’ privacy, it had the discretion to grant a remedy under s 102(2) of the Act.23
[32] In determining whether to award damages, the Tribunal noted that Mr Gorgus was required to demonstrate that he had suffered a form of harm specified under the Act as a result of the interference with his privacy.24 The Tribunal further observed that it was required to take into account the conduct of the defendant when assessing the question of remedies.25 It found that there was no evidence of “bad faith” by Corrections in its failure to respond to the First Request and the Second Request.26
[33] The Tribunal declined Mr Gorgus’ claim to damages for loss of benefit under s 103(c) of the Act, which is not under appeal before this Court.27
[34] The Tribunal then considered whether the interference had given rise to humiliation, loss of dignity, and injury to feelings, under s 103(d). It found that Mr Gorgus’ aggravation at the actions of Corrections stemmed from the circumstances leading up to his information requests, rather than from the actual interference with his privacy. Its key findings were that while Mr Gorgus was aggrieved, there was no material link between that and the interferences with his privacy. His hurt and
21 The Tribunal decision, above n 2, at [79] and [118.1]. The Tribunal referred to making a declaration under s 85(1)(a) of the Act, however this was an error as the applicable section was s 102(2)(a). Nevertheless, the effect of the order remained the same.
22 At [118.2].
23 At [74].
24 At [73].
25 At [82].
26 At [84].
27 At [101].
humiliation were caused by general frustration with his treatment in relation to the loss of a position and his belief that the Corrections officers were acting maliciously.28
[35] The Tribunal found no causal link between the breach and the loss of benefit to Mr Gorgus. Although Mr Gorgus alleged that he wanted to “make a claim” based on the information sought, including in relation to the Laundry Incident, the nature of the claim was not clarified. Furthermore, the Tribunal pointed out that Principle 6 did not act as a de facto discovery exercise, but was rather directed at ensuring that individuals are given access to those parts of records that contain personal information about them.29
[36] The Tribunal found on the evidence that Mr Gorgus was not dismissed over the Laundry Incident. He was dismissed from employment in the prison laundry on 31 March 2020. The Office of the Prison Inspectorate report dated 20 May 2020 found that he was dismissed because he was found with an unauthorised item. There was no evidence to suggest that his dismissal from the laundry was influenced by the allegation made by the Prison Officer which was the subject of the Laundry Report.30
[37] The Tribunal declined to make any award of damages for humiliation, loss of dignity, and injury to feelings.
Analysis
First ground of appeal — the Tribunal erred in finding that the interferences did not cause emotional distress
[38] The first ground of appeal is that the Tribunal erred in finding that the interference with the appellant’s privacy did not cause humiliation, loss of dignity and injury to feelings. The appellant submits that this was plainly wrong and cannot be sustained in light of the evidence.
[39] Counsel for the appellant submitted that it was clear from Mr Gorgus’ evidence that he had suffered emotional distress. Ms Taefi submitted that the Tribunal had made
28 The Tribunal decision, above n 2, at [113]–[117].
29 At [91].
30 At [93].
no finding rejecting the relevant statements made by Mr Gorgus and there was nothing to contradict that evidence. In those circumstances, the Tribunal should have accepted the evidence of Mr Gorgus.
[40] Ms Taefi says that the Tribunal did not sufficiently analyse the claim and the evidence to enable it to separate the damages which were attributable to the privacy breaches from those attributable to Mr Gorgus’ general frustration with the system. Ms Taefi further submitted that the Tribunal failed to separate its view on the loss of benefit damages claim which was dismissed by it and from which there is no appeal, from the emotional distress damages claim. Ms Taefi noted that there was a substantial focus on the loss of benefit claim, which may have diverted the Tribunal from the emotional distress damages claim.
[41] As this ground of appeal alleges that the Tribunal was in error in its assessment of the evidence, it is necessary to consider the relevant material.
[42] Ms Taefi took us through Mr Gorgus’ evidence, including the following passages:
Mr Gorgus: I have found the continuing failures to respond to my request to be extremely distressing and humiliating. I have had to make repeated requests and complaints in order to get any action at all. I have had to provide additional information in order to prove that the requests do – that the reports do in fact exist. I have been trying to prepare a case for submission to the High Court and I need the information relating to me in order for the purposes of my case. The prioritisation by Corrections has meant that I have not been able to assemble the material for my case and this caused further delays in commencing litigation. I believe that everyone is entitled to have personal information provided to them promptly and accurately. I have been frustrated by the way in which Corrections has repeatedly dealt with my requests in an unreasonable way.
…
But I think you could image (sic), you know, the sequence of events and the process that the department has sought to engage in, you know. It was extremely depressing, it was, you know because I’m trying to access my own personal information and I followed the correct process and I would have expected the department to follow that process and by then continuing to ignore my requests and their failure to release this information to me was extremely extremely frustrating you know because simultaneously you’re trying to collate all the relevant information so that you can put a, file a statement of claim together and them not releasing all the entire information
that you’ve acquired legally was just, it was just unbearable to face… it really was.
…
I consider that blocking my access to the only effective means by which I am able to exercise my statutory right and acquire the information which I had requested was denied to me and on grounds which I can, which cannot and quite frankly should not be justified in a free and democratic society because that demonstrates a contempt or disregard of not only my dignity but also my humanity interests and being able to acquire my personal information.
[43] Counsel for Corrections in cross-examination before the Tribunal took Mr Gorgus through his correspondence with the Privacy Commissioner, and put it to Mr Gorgus that in the correspondence he did not sound humiliated or powerless. The relevant exchange is as follows:
Q. I think it's also fair to say that you are extremely frustrated by, I guess, the nature and the extent of the delays there were in you receiving that information?
A. Oh, absolutely, yes, absolutely. It's my 100%. It's very frustrating especially when you are incarcerated because you know that adds further stress as well because you know you're locked in your cell and you’re stewing and all these thoughts in your head that the department’s not making all this information available to you, that you are legally and rightfully are entitled to and it just adds extra stress and frustration on top of what you're already experiencing of them, you know.
Q. So you were frustrated but I would put to you that you don’t sound like you were humiliated in that correspondence?
A. Well yes absolutely I was humiliated because I felt that my rights didn’t matter, you know, they were humiliating me by continuously ignoring me. I mean that’s a feeling of humiliation, that’s a feeling of you don’t matter, we’re not going to listen to you, you’re just a prisoner, we don’t care about you, you know, that’s humiliating, to me it is because you know I felt powerless conferred by law of my dignity conferred by law. You know, I’m a human being I have rights, you know, and I was just trying to exercise them and by the department not making that information available to me it was extremely humiliating for me because it was telling me that you don’t matter, you’re not a human being, you’re in prison, we don’t care about you, we’re not going to respond to any of your requests. So I was humiliated.
[44] Ms Taefi emphasised that Mr Gorgus had asked on a number of occasions for the information and he had thought that the requests were being ignored, which left him stewing in his cell and feeling powerless to remedy the situation. In this situation she submitted it was no response to say that Mr Gorgus was a robust person who was
used to litigation and so would not suffer emotional distress for the breaches of his privacy by Corrections.
[45] There was ample evidence upon which the Tribunal could find that Mr Gorgus was frustrated by the system and the events referred to in the reports sought rather than the delay in the provision of the information. Mr Gorgus’ evidence indicated that he took the view that the withholding of the information was malicious, deliberate, and in bad faith on the part of Corrections. He considered that Corrections were being obstructive to the claim that he was working on for which he said he needed the information. Mr Gorgus referred to these issues a number of times in his evidence. Mr McCusker referred to the following examples:
A. So all that, all of that is stress and frustration and there’s a unlawful punishments arising out of false allegations which was concocted by corrupt prison officers. You know I was unable to challenge those allegations because these corrupt prison officers had concocted false allegations in order to dismiss me from my prison laundering (sic) employment. The reality is that the report is currently before the tribunal, the report is currently before you, you know, and no matter how much you try and sugar coat it the allegations were not substantiated and I was unable to progress through the prison system. I was punished unlawfully. I was charged with an alleged offence unlawfully. I was sent to another unit. I was not able to get , obtain other employments and all because these allegations were concocted by corrupt prison officers.
…
A Yes I think it is important to communicate to the tribunal that the Department of Corrections has a propensity of engaging in such conduct. I think anything that’s sort of (inaudible 11:10:43) them, any information that tends to disfavour them they seem to refuse to release to me and I think this is evidenced by the relevant material before the tribunal. I think it is also important to advise that to this date I still have not had the entire information that I requested. There has been some information that has still be withheld, some information has been redacted and notwithstanding the fact that the Office of the Privacy Commissioner recommended the redacted information should be released to me in its entirety and the withheld information should be also released to me.
[46] Mr Gorgus believed he had been put in solitary confinement, lost his privileges, and was unable to be paroled due to the Laundry Incident. He also considered that he had been dismissed from his job in the laundry because of the Laundry Incident which was the subject of the Laundry Report.
[47] Mr Gorgus also gave evidence that he was the subject of “false allegations” concocted by “prison officers” and unlawfully punished. He considered he could not gain any other prison employment because of the allegations. Mr Gorgus did not mention these allegations in his statement of claim in the proceeding nor in his initial brief of evidence dated August 2021. He made these allegations for the first time in his reply witness brief dated 19 November 2021.
[48] In relation to his loss of the laundry job, the Office of Prison Inspectorate had found these allegations were incorrect. Mr Gorgus had been dismissed from his job because he was found with an unauthorised item. Mr Gorgus took issue with the findings of the Inspector and regarded those as incorrect as well.
[49] It was clear from his evidence that Mr Gorgus was very frustrated with the prison system and the events that had given rise to the privacy requests. While he used the words of the relevant damages provision saying he felt humiliation and referred to his dignity, the Tribunal was not in error in concluding that, having seen and heard all the evidence, the effect on Mr Gorgus was frustration with the system generally particularly related to his belief that the Corrections staff were acting maliciously and that his benefits had been affected by the relevant incidents.
[50] Mr Gorgus was frustrated with the system and was of the view that the Corrections officers were corrupt and had acted maliciously in a number of respects, not just in relation to the privacy issues. Damages are only one of the remedies under the Act. Their purpose is to compensate for “actual humiliation, loss of dignity or injury to feelings. It is not to punish.31
[51] In addition, Mr Gorgus said that the delays hindered him from preparing a case for submission to the High Court, but provided no evidence as to what his proposed claim was about. This was the reason that the claim for damages based on loss of a benefit was dismissed and is not the subject of this appeal. The Tribunal had no information on what the consequence of that failure might be for the claim proposed by Mr Gorgus and so what effect that might have on an emotional distress damages claim.
31 Dotcom v Attorney General [2023] NZHC 1122, [2023] 3 NZLR 1 at [174].
[52] In relation to Mr Gorgus’ allegations of corruption, Ms Taefi accepts that the Tribunal made a finding that there was no evidence of bad faith, however she says it is a further and unwarranted step to say that the failure to provide the information was an innocent mistake. In any event, she submits that the length of time to respond militates against such an explanation, and during that time Mr Gorgus was left wondering whether he was being ignored, engendering feelings of humiliation, lack of dignity and injury to feelings. Ms Taefi submits that the fact that the defendant pursued the issue and got nowhere exacerbated the position.
[53] We agree with the submissions of the respondent that although Mr Gorgus described the effect of the interferences with his privacy in highly emotive language, claiming that he felt “humiliated” and “powerless”, in the circumstances any link between the interferences and the alleged emotional distress amounts to no more than an assertion. The Tribunal, who heard his evidence, made no error in its assessment of that evidence.
[54] The Tribunal did carry out the reasoned analysis required. It rejected any suggestion of bad faith,32 and also noted that earlier requests for personal information and the Third Request were responded to.33 While in some cases emotional distress may be inferred, there was nothing in this case which would lead to such an inference. The Tribunal was succinct in its reasons but earlier in the decision had traversed the evidence and specifically dealt with the loss of benefit claim. It then separately dealt with the emotional damages claim, correctly noting that it must satisfy itself on the evidence that the emotional distress claim was made out and that there was a material causal nexus between the evidence it heard from Mr Gorgus as to his frustration and annoyance and the interference with privacy. No damages for emotional distress were be awarded as there was no “material causal connection” between the interference and the “humiliation, loss of dignity and injury to feelings.”34
[55] Counsel for the appellant submitted that the Tribunal should have taken more care in its analysis of how the privacy breaches affected Mr Gorgus personally. She
32 The Tribunal decision, above n 2, at [85].
33 At [86].
34 At [106].
also said it had been distracted by the loss of benefit claim, such that it did not properly assess the emotional distress damages claim. We consider the Tribunal undertook the analysis that was required. It was not required to assess or reject every piece of evidence, but to provide reasons for its assessment, which it did. It set out the factual background and its findings on the privacy issues, then analysed of the loss of benefit claim. It then separately examined the emotional distress damages claim, setting out the basis for the claim, reviewing the case law, and noting that damages are “fact- driven and vary widely”.35 It noted the need for a “material causal connection between the interference and the humiliation, loss of dignity and injury to feelings”.36 The Tribunal went on to analyse the claim, and noted that while Mr Gorgus had concerns regarding protections under the New Zealand Bill of Rights Act 1990 (NZBORA) and his right to natural justice, it was considering an award for breach of privacy under the Privacy Act.
[56] The Tribunal noted that despite the fact that Mr Gorgus was a prisoner, there is nothing about a custodial context which might warrant a higher award of compensation, referring to Reekie v Attorney-General.37 It acknowledged that Mr Gorgus was aggrieved at the actions of Corrections and that the aggravation stemmed materially from the actions of Corrections on 20 May 2019 which gave rise to the Use of Force Incident, and from Mr Gorgus’ treatment in connection with the loss of his laundry position.38 The Tribunal observed that Mr Gorgus’ attitude was one of general frustration or annoyance with the system as a whole, evidenced by his belief that the failures to respond to his requests were deliberate and malicious.39 It was in a good position to make that assessment having seen and heard Mr Gorgus’ evidence. It was required to consider Mr Gorgus’ assertions of emotional distress against the evidence he gave and all the evidence and the facts before it. They were not bound to accept his assertions on their face.
[57] The Tribunal was not required to give its reasons in greater detail than it did in reaching its conclusion on causation. Nor as we have said was it required to set out a
35 The Tribunal decision, above n 2, at [105].
36 At [106].
37 At [111], citing Reekie v Attorney-General [2022] NZHRRT 20.
38 At [113].
39 At [117].
detailed forensic assessment of the evidence. In making its assessment of the evidence the Tribunal however did have the advantage over this Court on appeal. Nothing further in the nature of analysis was required of the Tribunal.
[58] The respondent emphasised that Mr Gorgus is an experienced litigant who is familiar with his rights under the Privacy Act and had previously engaged in robust correspondence with the Privacy Commissioner in attempt to secure compensation. Mr McCusker submitted that this does not suggest a person who felt “humiliated” or “powerless”, but rather someone who has exhibited a high degree of agency. Ms Taefi, said that the respondent’s submission that Mr Gorgus’ conduct at the time of the interferences indicates that he was of robust character is not well made. Ms Taefi however says that different people deal with emotional responses in different ways, and it is unfair to deny Mr Gorgus damages on the basis of his trying to get the information.
[59] The tenor of the transcript indicates that Mr Gorgus was a robust individual and familiar with legal proceedings.40 He agreed in evidence that compensation was his main focus from 14 July 2020, when he disputed the Privacy Commissioner’s assessment and threatened to issue proceedings against the Commissioner for not finding he had suffered adverse consequences for the privacy interference.
[60] It is no error to take into account the personal characteristics of a plaintiff when considering emotional distress. The Tribunal is required to consider whether the interference was causal of the “humiliation, loss of dignity and/or injury to feelings” such as to give rise to damages. To that extent it must assess the effect on the individual concerned. Nor was the Tribunal required to go through each of Mr Gorgus’ comments and specifically reject them. It was required to make an assessment of the evidence as a whole and put such weight on it as it considered appropriate.
[61] A plaintiff must satisfy the Tribunal that there is some basis in the circumstances of the delay or some other contextual factor from which an inference of
40 In Dotcom v Attorney General [2023] NZHC 1122, [2023] 3 NZLR 1 at [167]–[173], the Court rejected claims that the plaintiff had suffered emotional distress, having regard to his personality and litigation history.
emotional distress can be appropriately drawn.41 In this case, while there was some delay, we do not consider the Tribunal was wrong in its view that this was not causative of emotional distress. The information was largely supplied by Corrections by December 2019. The balance was supplied in the course of the Privacy Commissioner’s investigation, with which Corrections cooperated, apart from Laundry Report it had provided all of the information sought and withdrawn most of its redactions by August 2020. It was open to the Tribunal to find the context did not give rise to an inference of emotional distress for delay.
[62] Ms Taefi submits that Mr Gorgus should be awarded $40,000 in damages for the interference with his privacy. She suggests that this falls within the “middle band” as set out in Hammond v Credit Union Baywide,42 is consistent with recent case law involving breaches of Principle 6,43 and would reflect that Mr Gorgus’ humiliation, loss of dignity, and injury to feelings is moderate.
[63] Ms Taefi pointed to a number of cases in which damages were awarded at levels in the vicinity of $40,000, which is the amount sought here, suggesting this case is at least as serious as those cases. However, each case turns on its own facts.
[64] The facts in the cases referred to by the appellant vary significantly from the present case. It is not necessary to go through all the decisions. However we refer to two cases which the appellant cited as being particularly relevant, as the awards of damages for emotional distress were in the vicinity of the $40,000 claimed here. The first was Director of Human Rights Proceedings v Netsafe Inc, in which the Tribunal awarded three complainants $30,000 each for emotional distress resulting from failure to disclose personal information.44 The requests had been initially refused in their entirety, although some information was disclosed nine months after the request. The case involved Netsafe, an approved agency under the Harmful Digital Communications Act 2015, which had withheld personal information from the complainants in the context of extreme harassment of those women by the person
41 Hammond v Credit Union Baywide [2015] NZHRRT 6 at [170.1].
42 At [173].
43 Director of Human Rights Proceedings v Netsafe Inc [2022] NZHRRT 15; and Vivash v ACC
[2020] NZHRRT 16.
44 Director of Human Rights Proceedings v Netsafe Inc [2022] NZHRRT 15.
providing the personal information to Netsafe. The Tribunal found there was no basis to withhold the information and that Netsafe was “misguided” as to its obligations under the Privacy Act.45 The Tribunal found damages were appropriate in view of the extreme distress of the women resulting from the breaches. It found a clear causal connection between the interference and the form of loss or harm claimed. In the case of one complainant she had undertaken therapy as a consequence and was stressed and anxious about the refusal to release the information in the context of the psychological abuse by the person supplying the information. There was also direct evidence supporting the claims. The Tribunal found that while it was not possible to specify with precision the extent to which the different factors contributed respectively to the emotional distress, there was “strong evidence” before it supporting the emotional damages claim.46
[65] Ms Tafei submits that the refusal to disclose the Laundry Report is analogous to the circumstances in Vivash v ACC, where the plaintiff attempted to access his own statutory entitlements and was wrongly informed that the documents sought did not exist.47 In Vivash v ACC, the Tribunal awarded $40,000 to the plaintiff, who sought information from ACC and had been told the documents he requested no longer existed.48 The plaintiff had been consistently told by ACC over a period of more than 12 years that his file did not exist. However ACC disclosed only at the Tribunal hearing that the file which they had said was destroyed in fact still existed. The Tribunal observed the visible effects of the revelation on Mr Vivash, who was in obvious physical pain from his injuries. Those circumstances are not comparable to those in the present case under appeal.
[66] Other cases which the appellant referred to that involved lesser amounts of damages included Watson v Capital and Coast District Health Board, in which
$10,000 was awarded for emotional distress where the plaintiff gave evidence that she had suffered stress and anxiety about not having to access to Human Resources documents that she wished to correct.49 Ms Taefi also pointed to Director of Human
45 Director of Human Rights Proceedings v Netsafe Inc [2022] NZHRRT 15 at [210].
46 At [226] and [227].
47 Vivash v ACC [2020] NZHRRT 16.
48 Vivash v ACC [2020] NZHRRT 16.
49 Watson v Capital and Coast District Health Board [2015] NZHRRT 27.
Rights Proceedings v Valli, where the Tribunal awarded $15,000 against the complainant’s employers for emotional distress following the repeated failure to provide him with his employment and tax records.50 These cases were assessed on their merits and the Tribunal was satisfied with the evidence as to the material cause of the emotional distress.
[67] As is apparent the case law cited where significant awards of emotional distress damages were awarded involved serious interference with privacy. The cases are fact specific and the evidence before the Tribunal in each case satisfied it that damages were appropriate.
[68] The Tribunal was not so satisfied here. It made no error on the facts of this case. It appropriately dismissed the claims for emotional distress damages.
Conclusion
[69] We do not consider the Tribunal made any error in its assessment. It carefully reviewed the evidence and, having seen and heard in particular the evidence of Mr Gorgus, was in a good position to assess the emotional distress claim and whether there was material causation between the emotional distress alleged and the privacy interference. It was entitled to reject Mr Gorgus’ allegations. As the Tribunal noted:51
[113] In this case there is no doubt that Mr Gorgus was aggrieved at the actions of Corrections. In our view, however, that aggravation stemmed materially from the actions of Corrections on 20 May 2019 which gave rise to the use of force and from Mr Gorgus’ treatment in connection with the loss of his laundry position.
[114] Mr Gorgus' hurt and humiliation appeared to us to be attributable to the events giving rise to the requests to his personal information rather than to the privacy interference itself. Mr Gorgus’ attitude was one of general frustration or annoyance with the prison system as a whole, evidenced by his belief that the failures to respond to his requests were deliberate and malicious.
[115] Mr Gorgus says that the cases of Taylor (HRRT) (where no damages award was made) and Ministry of Social Development v Holmes, (where
$2,000 was awarded) are distinguishable as somewhat trivial by comparison with Mr Gorgus' case.
50 Director of Human Rights Proceedings v Valli [2014] NZHRRT 58.
51 The Tribunal decision, above n 2, (footnotes omitted).
[116] We must, however, establish the material causal nexus between the interference with privacy and alleged humiliation, loss of dignity, and injury to the feelings before awarding any damages.
[117] We are of the view that there is not a material link between Mr Gorgus’ frustration and annoyance and the interferences with his privacy. Accordingly, we decline to make any award for humiliation, loss of dignity, and injury to feelings. As we have declined to make an award of damages, there has been no need to consider the effects of the PVCA.
[70] The Tribunal was entitled to put such weight as it considered appropriate on the evidence and reach the conclusion, which was open to it that there was not sufficient evidence to establish a material casual link between Mr Gorgus’ frustration and annoyance and the interference with his privacy such as to warrant any damages for emotional distress.
[71]The appeal is dismissed under this head.
Second ground of appeal — material causal nexus between interference with privacy and emotional distress
[72] The second ground alleges that the Tribunal erred in finding, as a matter of law, that a plaintiff must establish a material causal nexus between the interference with privacy and alleged humiliation, loss of dignity and injury to feelings before awarding any damages. This was an error of principle.
[73] The submissions in support of this ground of appeal rested on the allegation that the Tribunal failed to analyse how much of Mr Gorgus’ expressed frustration and aggravation was attributable to the interference with privacy, and how much was general frustration and aggravation with the system and other factors.
[74] Ms Taefi pointed out that the Tribunal noted in Netsafe that there was strong evidence that the interference with privacy did cause humiliation and injury to feelings, but was not the sole contributing factor to the harm.52 The Tribunal said that the interference compounded distress caused by other factors, and the complainants were entitled to damages for this harm. In that case, there was specific and strong evidence as to the emotional distress. That is not the case here. The requirement is
52 Director of Human Rights Proceedings v Netsafe Inc [2022] NZHRRT 15.
that the causal link or nexus between the interference and the emotional distress is “material”. This is capable of assessment on the evidence. The Tribunal was cognisant of the role of materiality. It referred the need for there to be such a material causal connection.53 It referred to a similar material causal link that needed to be satisfied for damages to be awarded for the loss of a benefit.54
[75] Ms Taefi also submitted that the Tribunal had been in error in requiring a material causal nexus between the interference with privacy and alleged humiliation, loss of dignity and injury to feelings before awarding any damages. It is well established that a causal link is required.55 The Tribunal made no error in directing itself that a causal link on the evidence that the interference caused the emotional distress.56 The link must be material or it would not be causal.
[76] We have outlined the evidence that the Tribunal had before it and its conclusion that there was no material causal link. It reached the view that it had no reliable evidence on which it could be satisfied as to the required link. The Tribunal made no error in reaching that conclusion. This was not a case where there was evidence accepted by the Tribunal that the interference with privacy did cause humiliation and injury to feelings but was not the sole contributing factor to the harm. It found that there was no material causal link, a conclusion open to it.
Third ground of appeal — objective approach to dignity
[77] The appellant submits that an interference with privacy will result in an injury to the complainant’s dignity because “loss of dignity” should be determined objectively (unlike humiliation and injury to feelings, which it is accepted must be assessed on a subjective basis). Reliance is placed on Marshall v IDEA Services Ltd, where it was held that a plaintiff could still receive damages for loss of dignity, despite being severely disabled such that he or she was incapable of being aware that a loss of dignity had occurred.57
53 The Tribunal decision, above n 2, at [106].
54 At [101].
55 Dotcom v Attorney General [2023] NZHC 1122, [2023] 3 NZLR 1 at [171]
56 The Tribunal decision, above n 2, at [116].
57 Marshall v IDEA Services Ltd [2020] NZHRRT 9 at [102].
[78] The respondent submits that while the appellant relies on Marshall in asserting that an objective approach ought to be taken to assessing “loss of dignity”, that case arose in the specific context of the Health and Disability Commissioner Act 1954, so may not be applicable. Regardless, the respondent submits that, in Mr Gorgus’ case, there is unlikely to be any material difference in outcome irrespective of whether an “objective” or “subjective” approach is taken.
[79] Ms Taefi accepts there may be some circumstances where the extent of the privacy interference is negligible and nominal damages will apply but disagrees with the Tribunal in Marshall that an award of damages for loss of dignity will not be justified if a breach is not at the serious end of the scale. She submits that Mr Gorgus’ position is consistent with the comments of the High Court in Dotcom v Attorney-General that damages for non-pecuniary damage harm do not require any threshold of significance.58
[80] The respondent submits that Mr Gorgus appears to equate a breach of Principle 6 with loss of dignity, which Marshall states “are not to be conflated”.59 Furthermore, it is observed that an objective approach still requires an evidence-based assessment as to how the breach has impaired the plaintiff’s dignity, which as discussed above, is not present in this case.
[81] Moreover, the respondent suggests that Mr Gorgus in effect submits that damages should be awarded as of right. However, as stated in Marshall, under an objective approach the purpose of an award of damages is to vindicate the loss of dignity, rather than compensate for any emotional distress.60 The case for damages may therefore be less compelling if vindication can be achieved through other means, for instance through Mr Gorgus receiving access to his personal information and the declaration issued by the Tribunal.
[82] Ms Taefi argues that the importance of privacy rights in the context of human rights means any breach should sound in damages, even if only nominal in some cases.
58 Dotcom v Attorney-General [2023] NZHC 1122, [2023] 3 NZLR 1 at [159].
59 Marshall v IDEA Services Ltd [2020] NZHRRT 9 at [125].
60 At [107.4].
The appellant therefore submits that the Tribunal’s finding that an interference does not justify damages under s 103 of the Act is wrong as a matter of law and fails to give effect to New Zealand’s privacy obligations and standards in relation to the privacy of personal information, including the OECD Guidelines and the ICCPR, which is an express purpose under s 3 of the Act.
[83] However, this argument overlooks the legislative framework in place and the fact that there are other remedies available under the Act which do not involve damages.
[84] First the section specifically says that damages “may” be awarded by the court.61 This imports a discretion which would negate any automatic award of even nominal damages.
[85] Secondly, the international instruments and New Zealand’s privacy rights do not require damages in order to be effective. The available remedies include a declaration and orders to provide the information. As this Court noted in Taylor v Corrections, which was referred to by the Tribunal, Principle 6 is directed at ensuring individuals are given access to those parts of records that contain personal information.62
[86] We note that dignity is a notoriously difficult concept to define, New Zealand has tended to rely on Canadian jurisprudence in applying this concept. In Law v Canada, dignity is described as a feeling of “self-respect and self-worth”, which is “harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities or merits”.63 This implies some degree of marginalisation or dehumanisation, which is not present in this case. The interference with privacy has been remedied through provision of the relevant information to Mr Gorgus. Similarly, we do not consider that Mr Gorgus’ experience could be characterised as one of “humiliation”.
61 The Act, s 103(1).
62 Taylor v Chief Executive of the Department of Corrections [2020] NZHC 383; and Taylor v Corrections [2018] NZHRRT 35.
63 Law v Canada (Minister of Employment and Immigration) [1999] 2 SCR 497 at [53].
[87] The Tribunal and the courts have routinely found damages not to be payable in privacy breach cases. In fact, the bands suggested in Hammond are based on a recognition that damages are compensatory rather than punitive or a remedy to be routinely awarded on breaches.
[88]We dismiss the appeal under this head.
Prisoners’ and Victims’ Claims Act 2005
[89] We have concluded that the Tribunal made no error in declining to make an award of damages. Nevertheless, we go on to consider the Prisoners’ and Victims’ Claims Act 2005 (PVCA) which would be relevant if we found that Mr Gorgus was otherwise entitled to damages.
[90] Claims for compensation under the PVCA Act are “specified claims” for the purposes of the PVCA, which restricts the award of compensation for such claims to “exceptional cases” where other effective redress is not available.64 In considering whether compensation is required, the Court must have regard to the matters in s 14(2) of the PVCA, which are said to closely mirror those relating to compensation under the NZBORA.
[91] The respondent submits that even if emotional distress were established, Mr Gorgus received effective redress through the provision of his personal information and a declaration that his privacy has been interfered with. It is noted that a declaration is a significant remedy in its own right, particularly where all outstanding information has been provided and there is no evidence of any adverse consequences.65 Furthermore, the provision of information is the primary remedy for a breach of Principle 6.66
64 Prisoners’ and Victims’ Claims Act 2005 [PVCA], s 3(1).
65 Taunoa v Attorney-General [2007] NZSC 170, [2008] 1 NZLR 429 at [368] per McGrath J.
66 PVCA, s 14(2)(g).
[92] We agree in this case, Corrections did not act in bad faith and took all reasonably practicable steps to mitigate the interference, and there is no need to emphasise the importance of or deter similar breaches.67
[93] We would have concluded that this was not an exceptional case where other effective redress is not available if we had not dismissed the appeal on other grounds.
Conclusion
[94] It is noted in Winter v Jans that “injury to feelings” can include anxiety and stress.68 However, in this case the Tribunal was satisfied that Mr Gorgus was frustrated and aggrieved because of the events giving rise to the privacy requests not the interference with privacy. The interference was not materially causally linked to emotional distress such as to satisfy the requirements for a damages claim under s 103(d). We agree with the Tribunal that Mr Gorgus’ frustrations were linked to his status as a prisoner and systemic issues with the prison system not with the interference with privacy itself.
[95] The Tribunal made no error of law or principle; did not take into account irrelevant considerations; nor did it fail to take into account relevant considerations. It was not plainly wrong.
[96] In addition in any event, this would not fall within the category of “exceptional” cases where damages are required in order to give an effective remedy, and therefore would not meet the required threshold under the PVCA. Mr Gorgus has already received a declaration and access to the information sought which, as noted by the respondent, is the usual remedy for breaches of Principle 6.
[97]The appeal is dismissed on all grounds.
67 PVCA, s 14(2)(a), (b), and (e).
68 Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004 at [36].
Costs
[98] Mr McCusker indicated that as Mr Gorgus is in receipt of legal aid, no costs would be sought. In those circumstances there is no issue as to costs and no award is made.
Grice J
M Keefe
S Stewart
Solicitors:
Luke Cunningham & Clere, Wellington
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