Grupen v Director of Human Rights Proceedings
[2012] NZHC 580
•29 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-8332 [2012] NZHC 580
UNDER the Privacy Act 1993
BETWEEN RUTH MARIE GRUPEN Appellant
ANDTHE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS
Respondent
Hearing: 7 September 2011
Court: Peters J
Mr B K Neeson (Lay member) Mr R K Musuku (Lay member)
Appearances: Appellant in person
R Stevens for the Respondent
Judgment: 29 March 2012
JUDGMENT OF THE COURT
This judgment was delivered by Justice Peters on 29 March 2012 at 4 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ........................................
Counsel: R Stevens, Auckland – email: [email protected]
R M Grupen, Auckland – email: [email protected]
Copy for: Director of Human Rights Proceedings, Auckland – email: [email protected]
GRUPEN V THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS HC AK CIV-2010-404-8332 [29 March
2012]
Introduction
[1] The appellant appeals from a decision of the Human Rights Review Tribunal
(“Tribunal”), in which the Tribunal:1
(a) Determined that the appellant had interfered with the privacy of a Mr Lee within the meaning of s 66(2) of the Privacy Act 1993 (“the Act”). The Tribunal found that, without having a proper basis to do so, the appellant had refused Mr Lee’s request for access to personal information.
(b) Ordered the appellant to pay damages of $8,500.00 to the respondent.
[2] The appellant denies that she interfered with Mr Lee’s privacy. If the appellant is correct in that regard, then the Tribunal had no jurisdiction to award damages against her. The appellant also submits that the evidence before the Tribunal was insufficient to warrant the award of damages. Subject to these points, however, there is no appeal against the quantum of the award or against a subsequent decision by the Tribunal that the appellant should pay costs to the respondent.2
[3] The appeal is brought pursuant to the provisions of Part 4 of the Human Rights Act 1993.3 Section 123 of the Human Rights Act 1993 allows for a general appeal to the High Court from a determination of the Tribunal. The appeal proceeds by way of rehearing and the Court is entitled to reach its own conclusion on the merits, although the fact that the Court or Tribunal appealed from has particular technical expertise or has had the opportunity to hear evidence may be an important
consideration to bear in mind.4
1Director of Human Rights Proceedings v Grupen [2010] NZHRRT 22.
2 Director of Human Rights Proceedings v Grupen [2011] NZHRRT 3.
3 Privacy Act 1993, s 89.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]-[5]; and
Ministry of Health v Atkinson (2010) 9 HRNZ 47 (HC) at [8].
[4] The appellant advanced various grounds of appeal, which we have summarised in [22] below. However, the principal issues to be decided are:
(a) Did the appellant interfere with Mr Lee’s privacy? This requires a determination of whether the appellant held information which was Mr Lee’s personal information within the meaning of the Act; whether Mr Lee asked for access to the information; and, if so, whether access was refused, without there being a proper basis for refusal.
(b)If the appellant fails on (a), whether the Tribunal had sufficient evidence on which to make the award of damages which it did.
Background
[5] The appellant, a barrister, represented Mr Lee and a company of which Mr Lee was a director and shareholder (“the company”) in two civil proceedings. The appellant appeared for the company in both proceedings. Mr Lee was a party to only one proceeding and the appellant appeared for him in that matter.
[6] A dispute developed as to the appellant’s fees. The appellant’s invoices were addressed to Mr Lee but were paid by the company. The dispute as to fees came before the Auckland District Law Society on two cost revision procedures. The same reviser conducted both revisions.
[7] The appellant’s practice was to record her attendances on a particular matter by handwriting in her diary the time spent and the nature of the attendance. The appellant did not wish to produce her diary, or a copy of it, to Mr Lee and his solicitor. Instead, she prepared what she said was a transcript of the relevant information (“transcript”).
[8] On the first cost revision, the appellant provided the reviser with the original diary, or a copy of it, and with the transcript. The appellant would provide only the transcript to Mr Lee. In its decision the Tribunal recorded that the Mr Lee did not object to that course being followed in the first revision but that he did take issue
with it on the second revision. On Mr Lee’s application, in February 2007 the reviser ordered the appellant to provide the diary to Mr Lee, with any irrelevant material to be masked off if the appellant wished.
[9] On 23 February 2007 Mr Lee’s solicitor made the following request by email:
I write further to my email and facsimile today.
I note that I have received no reply to my request for confirmation from you as to whether you will comply with the ruling of [the costs reviser].
In these circumstances, I write to advise that my client, Mr Lee requests that you make available for inspection his personal information, and in particular [the diary entries].
[10] On 26 February 2007 the appellant responded:
I disagree with you that such information is personal in the meaning of the
Privacy Act. I refuse your request.
[11] The appellant’s position on the matter remained unchanged. Despite Mr Lee’s objection, the reviser completed the second cost revision process by inspecting the diaries himself. The reviser largely upheld the appellant’s invoices.
[12] Mr Lee complained to the Privacy Commissioner regarding the appellant’s refusal to give him access to the diary entries. The appellant refused to show the entries to the Privacy Commissioner, the Commissioner referred the matter to the Director of Human Rights Proceedings and in June 2008 the Director issued proceedings in the Tribunal pursuant to s 82 of the Act.
[13] In June 2009 the appellant advised the Tribunal that she had lost the diaries. The appellant’s explanation, which the Tribunal had no reason to doubt, was that she had probably lost the diaries in the course of relocating her office. Given that occurrence, there ceased to be any prospect of an order that the appellant make the diaries available.
Tribunal’s decision
[14] The essence of the Tribunal’s decision is as follows.
[15] First, the Tribunal held that the diaries contained information about Mr Lee
and that, accordingly, those entries were Mr Lee’s personal information.5
[16] Secondly, because the diary entries contained Mr Lee’s personal information, Mr Lee was entitled to have access to the information by virtue of Information Privacy Principle 6(1)(b) (“principle 6(1)(b)”).6
[17] Thirdly, Mr Lee had requested access in the email his solicitor sent. That request constituted an information privacy request.7 The appellant had refused the request without having a proper basis to do so.8 Those two matters together constituted an interference with Mr Lee’s privacy.9
[18] Having determined that there had been such an interference, the Tribunal had power to grant one or more of the remedies listed in s 85(1) of the Act. In this case, the Tribunal made a declaration that the appellant’s refusal was an interference with Mr Lee’s privacy and it made an award of damages in accordance with s 88.
[19] Section 88 empowers the Tribunal to award damages against a defendant for an interference with the privacy of an individual in respect of:
88 Damages
...
(b) Loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have been expected to obtain but for the interference:
(c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.
[20] The Tribunal awarded damages of $8,500.00. This comprised awards of
$5,000.00 and $3,500.00, pursuant to ss 88(1)(b) and 88(1)(c) respectively.
5 Director of Human Rights Proceedings v Grupen [2010] NZHRRT 22 at [38].
6 Privacy Act 1993, s 6.
7 Ibid, s 33
8 Ibid, s 66(2)(b).
9 Ibid, s 66(2).
[21] One of the matters raised on the appeal is whether the evidence before the Tribunal was sufficient to warrant the awards which it made. The Tribunal accepted that Mr Lee had lost a benefit, namely the certainty that would have come with comparing the transcript with the actual diary entries, and that Mr Lee had been left believing that he may not have had a “fair crack of the whip” in the cost revision. The Tribunal also considered that the respondent had made out grounds for an award under s 88(1)(c). Mr Lee’s evidence was that he was infuriated by the appellant’s refusal. It is clear from the Tribunal’s decision that it considered the question of an award under s 88(1)(c) carefully, and that it took care to ensure that there was no “double counting” of Mr Lee’s dissatisfaction.
Grounds of appeal
[22] The appellant advanced a number of grounds of appeal which can be grouped under the following heads:
(a) The diaries did not contain information about Mr Lee and so were not his personal information. Accordingly, Mr Lee was not entitled to have access to the information and, as a result, any refusal by the appellant did not constitute an interference with Mr Lee’s privacy.
(b)Alternatively, the appellant was entitled to refuse to disclose the information in the particular form in which it was requested, pursuant to ss 29(1)(a) and (2)(a) of the Act.
(c) Alternatively, the appellant had provided the personal information that Mr Lee sought in the form of the transcript and as a result there could be no breach of privacy principle 6(1)(b) or any right to damages.
(d)The evidence before the Tribunal was insufficient to warrant an award of damages against the appellant.
(e) Various procedural bars which the appellant contended precluded the respondent pursuing the proceedings in the Tribunal.
Issue 1 – Did the diaries contain Mr Lee’s personal information?
[23] Personal information is defined as follows:10
personal information means information about an identifiable individual; and includes information relating to a death that is maintained by the Registrar-General pursuant to the Births, Deaths, Marriages, and Relationships Registration Act 1995, or any former Act.
[24] An individual is defined as meaning a natural person, other than a deceased natural person, and so excludes a company.11
[25] Accordingly, personal information is information about an identifiable natural person.
[26] The Tribunal referred to some extracts from the transcript to illustrate the kind of information that the diaries would have contained:
[10] The transcript for the second revision came to 9 pages of notes. Significantly, it is headed “Time recording – Bernie Lee and [the company]
...”
[11] It is convenient to replicate some extracts from the 9 page transcript to indicate the kind of information it contained:
“4 February 2005 Time: 25 mins
Detail: Telcon Bernie Lee. Peruse procedural order and note timetable of events.
...
15 February 2005 Time: 300 mins
Detail: Finish further memorandum. Liaise with Bernie Lee re affidavit. Discuss affidavit with Bernie Lee. Liaise with him re swearing of affidavit, serve on all parties by fax.
...
8 March 2005 Time: 60 mins
Detail: meeting B Lee re affidavit and advise on procedure
10 Ibid, s 2(1).
11 Ibid.
....
21 April 2005 Time: 30 mins
Detail: telcon B lee re possibility of statements re rate of decay.”
[27] The Tribunal regarded this kind of information to be “about” Mr Lee, and so considered it his personal information. The Tribunal regarded it as “obvious” that information that a telephone conversation or a meeting took place between the appellant and Mr Lee on a given day, for a given period of time, was information about Mr Lee.
Appellant’s submissions
[28] The appellant advanced three main submissions as to why the information was not Mr Lee’s personal information, and we deal with each of these submissions in turn.
[29] First, the appellant submitted that the information was information about her, it being a record of the matters on which she had spent time on any given day. For instance, the appellant’s entry for 22 December 2003 recorded that she had perused documentation, and that she had drafted a letter to Mr Lee and reviewed liquidated damages issues. The appellant submitted that this was personal information about her, as it recorded the matters on which she had spent time that day. The appellant referred us to findings of the Tribunal to the effect that at least some of the
information was personal to her.12
[30] Alternatively, the appellant submitted that the information was about the company, the company not being an individual for the purposes of the Act, or that if the information were “about” Mr Lee at all, it was not about him exclusively and, accordingly, fell outside the definition of personal information.
[31] We do not accept these arguments for the following reasons.
12 Director of Human Rights Proceedings v Grupen [2010] NZHRRT 22 at [40], [41] and [42].
[32] To meet the definition of personal information in the Act all that is required is that the information be “about” an identifiable individual. As the Court has said previously, that requires a factual enquiry.13 We agree with the Tribunal that diary entries such as those set out in [26] above, such as “Telecon Bernie Lee” and “Liaise with Bernie Lee re affidavit. Discuss affidavit with Bernie Lee” contain information about Mr Lee.
[33] We do not consider it necessary to read down the definition so as to exclude information which is about two or more individuals. In fact, we consider that another statutory provision in the Act, namely s 29(1)(a), contemplates that information might be the personal information of two or more individuals, and that that fact may give grounds to withhold all or part of the information. Section 29(1)(a) provides that an agency may refuse to disclose personal information if to do so “would involve the unwarranted disclosure of the affairs of another individual”. That provision anticipates that personal information may relate to more than one individual.
[34] Counsel for the respondent also submitted that a review of the legislative history of the Act confirmed that the legislature had made a deliberate choice to adopt a broad definition, and for good reason. Given the view that we have taken, it us unnecessary for us to repeat the submission in detail but note that it is similar to
that which found favour with the Court in Winter v Jans.14
[35] To conclude, we do not accept the appellant’s submission that information is only personal information if that information is exclusively about the individual concerned.
[36] The appellant also submitted that information is personal information within the meaning of the Act only if it is susceptible to the application of all of the information privacy principles in s 6. To illustrate that proposition, the appellant submitted that information could not be personal information unless, for instance, the
information had been collected directly from the individual concerned15 or if the individual concerned was entitled to request correction of the information.16 As at least some of the contentious information had not been collected from Mr Lee and, on the appellant’s view of it, Mr Lee would not have been entitled to request a
correction, the appellant submitted that it was not Mr Lee’s personal information.
[37] With respect to the appellant, her submissions do not reflect the strict wording of the principles to which she refers. However, the more important point is that the principles in s 6 are simply that – statements of principle. We do not consider the principles themselves are intended to define what is personal information.
[38] The appellant’s third submission on this first issue focused on the various relationships between the parties, including the lack of a contractual relationship between Mr Lee and the appellant (that relationship having been between Mr Lee and the appellant’s instructing solicitor); the fact that Mr Lee personally may have had no standing in the cost revision proceedings; and the nature of Mr Lee’s defence in the civil proceedings. Apparently, one ground on which Mr Lee defended the proceedings against him was that the company was the only party with any liability for any act or omission on his part.
[39] We consider these matters to be irrelevant to whether, as a matter of fact, entries in the diary contained information about Mr Lee. The Tribunal put the matter well in its decision, as follows:
[31] First, the defendant placed a great deal of emphasis on the facts that she had been acting for [the company], and that in truth she was not instructed by either Mr Lee or [the company] at all, but by Ms Andrew as an instructing solicitor. The idea seemed to be that those things might somehow have informed and even limited the way in which the Act should be applied in the circumstances.
[32] The point is empty. The overwhelming weight of the evidence shows that the defendant always regarded Mr Lee as ultimately being responsible for payment of her costs, and there is no doubt that at all material times she
owed the professional obligations of a barrister to both Mr Lee and [the company], even if strictly speaking she had been retained to act for them by Ms Andrew. Of far greater significance, however, insofar as the Act is concerned it simply does not matter. The defendant accepted (as she had to) that in these matters she was an ‘agency’ in terms of the Act. That being so, the Act applied to her no matter how her relationship with Mr Lee might have been characterised. It is no answer to the Directors’ claim to say that Mr Lee was not really her client, or that at times she was in truth acting for [the company] rather than Mr Lee, or that any contract for provision of her services was with Ms Andrew not Mr Lee or [the company].
[40] To conclude, we are satisfied the diary entries included Mr Lee’s personal information.
Issues 2 and 3 – Did the appellant have good reason to refuse Mr Lee access to his personal information? Alternatively, did Mr Lee receive the information in the form of the transcript?
[41] The appellant contends that she had good reason to refuse Mr Lee access to his personal information. Alternatively, she submits that Mr Lee did in fact receive the information, but in the form of the transcript.
[42] We note at the outset that the appellant’s point blank refusal to provide the information, on the basis that the diaries did not contain personal information, does not sit well with her more recent suggestions that she had good reason to withhold the information or that Mr Lee had the information in any event.
[43] It is necessary to set out some of the relevant statutory provisions before considering the second and third issues.
[44] The starting point is principle 6 which reads as follows:17
6 Information privacy principles
...
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) of this principle, 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 of this Act.
[45] There is no dispute that the appellant is an agency for the purposes of principle 6. Accordingly, subject to the information being readily retrievable and to Parts 4 and 5 of the Act, Mr Lee was entitled to have access to such of his personal information as was contained in the appellant’s diaries.
[46] Section 66 sets out the circumstances that will constitute an interference with the privacy of an individual. Such interference must be established on the balance of probabilities before the Tribunal may grant any remedy pursuant to s 85(1) of the Act.
[47] An interference with privacy may occur under either of s 66(1) or (2).18 The respondent relied on s 66 (2). The relevant parts of s 66 reads as follows:
66 Interference with privacy
...
(2) Without limiting subsection (1) of this section, an action is an interference with the privacy of an individual if, in relation to an information privacy request made by the individual,—
(a) The action consists of a decision made under Part 4 or Part 5 of this Act in relation to the request, including—
(i) A refusal to make information available in response to the request; or
...
(b) The Commissioner or, as the case may be, the Tribunal is of the opinion that there is no proper basis for that decision.
[48] Mr Lee made an information privacy request by virtue of his solicitor’s email to the appellant of 23 February 2007.19 Accordingly, the only issue that could arise was as to s 66(2)(b). The appellant submitted that she had a proper basis to refuse to make the diaries available, pursuant to s 29(1)(a) and (2)(a), s 29 being within Part 4.
[49] As we have said, the application of principle 6 is subject to Parts 4 and 5.
[50] Sections 29(1)(a) and (2)(a) read as follows:
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; or
...
(2) An agency may refuse a request made pursuant to principle 6 if—
(a) The information requested is not readily retrievable; or
...
[51] The appellant submitted that to disclose the information would have involved the unwarranted disclosure of the affairs of another individual, namely the appellant, and that in any event that the information was not readily retrievable.20
[52] Assuming for the moment that disclosure of the diary entries might have required disclosure of the appellant’s affairs, as counsel for the respondent submitted, such disclosure could not be considered unwarranted. The entries were a record of the time the appellant had spent on a client’s file and on which she herself had relied in the costs revision procedure. Also, and again as counsel for the
respondent submitted, there was nothing which would warrant withholding the information if the transcript was accurate, as the appellant said it was.
[53] The appellant also submitted that the information was not readily retrievable21 and that to prepare the diary for examination by Mr Lee would have been difficult, if not impossible.
[54] In the absence of the diaries it is impossible to know whether the information was readily retrievable. It is not uncommon, however, for a party to have to take care to disclose part only of a document. Section 43, to which we refer below, expressly permits that.
[55] Accordingly, we are not persuaded that the appellant had a proper basis for refusing to disclose the information.
[56] Turning now to the third issue, namely whether Mr Lee had access to the information in any event, the relevant provisions of the Act are ss 42 to 44, all of which are within Part 5.
[57] The gist of ss 42 to 44 is that, as a general rule, an agency is required to make information available in the way preferred by the person requesting the information. There are some exceptions to this general rule, including matters arising under s 29. If the agency does not propose to supply the information in the way preferred by the individual, then the agency must give the individual the reason for not doing so.
[58] There is no doubt that the appellant’s diaries would have contained information which was not Mr Lee’s personal information. Given that, s 43 would have allowed the appellant to make a copy of the document and to make such deletions or alterations as were required to ensure that Mr Lee was given access to
his personal information and no more than that.22
[59] Applying that to this case, the appellant was required to make the original diary entries available for Mr Lee to inspect. If the appellant was not going to do that she needed to say why not. If the appellant preferred to make a copy available in the form anticipated by s 43(1), it was open to her to do so.
[60] To conclude, we are not persuaded that the appellant had a proper basis for refusing Mr Lee’s information privacy request and, accordingly, we are satisfied that there was an interference with Mr Lee’s privacy.
Issue 4 – Was there sufficient evidence to warrant an award of damages against the appellant?
[61] Having determined that the appellant’s actions constituted an interference with Mr Lee’s privacy, the Tribunal had jurisdiction to award damages in accordance with s 88 of the Act.23
[62] The appellant raised two objections to the Tribunal’s award of damages.
[63] The first was that, given that she considered the information contained in the diary entries were provided to Mr Lee in the form of the transcript, there could be no right to damages.
[64] The second was an allegation that Mr Lee had produced no evidence of emotional harm, so as to found an award of damages pursuant to s 88 of the Act. This submission related back to a point we have mentioned previously, namely that in the civil proceeding Mr Lee contended he was a party to the contract in issue. On this basis, the appellant contended Mr Lee could not have believed that the information in the diaries was his personal information and could not have suffered emotional harm as a result of his lack of access to the information.
[65] We do not accept these submissions.
[66] It is a prerequisite to an award under s 88(1) that there be either a pecuniary loss, a loss of benefit, or humiliation, loss of dignity and injury to feelings. Once the Tribunal is satisfied that there has been such loss or humiliation, then the Tribunal may award damages against the defendant.
[67] As we have set out above, the Tribunal was satisfied that sufficient evidence had been adduced to make out grounds for an award. As we have also said, the Tribunal took care to ensure that there was no double recovery. Had the diaries still be available, then it may have been possible to confirm that the transcript was indeed accurate. Failing that, however, we do not consider there is any merit in the point in [63] above. As would have been apparent to the appellant, Mr Lee wished to check the diaries himself and he was not willing to take the appellant’s word for it.
[68] For our part, we have no hesitation in accepting that Mr Lee would have wished to check the transcript against the actual diary entries and that he would have been infuriated by the appellant’s outright refusal to make them available.
Issue 5 – Procedural objections to the Director’s proceedings
[69] The appellant raised various objections in principle to the respondent’s proceedings. The appellant contended that the proceedings sought to re-litigate and undermine the decisions of the Auckland District Law Society on the cost revisions. The appellant also contended that it was an abuse of process for Mr Lee to pursue a complaint under the Act or to seek access to information for the purposes of the cost revisions, when he was not a party to those revisions. The appellant also contended that the payment of the appellant’s invoices had created an estoppel, so as to prevent the reasonableness of the appellant’s fees from being revisited.
[70] Again, we do not consider that there is any merit in these submissions.
[71] The Act confers certain entitlements on an individual and imposes certain obligations on an agency that holds information about that individual. The entitlements and obligations are subject to the restrictions and exceptions contained in the Act. The appellant has not referred us to any provision in the Act which would
operate in the circumstances of this particular case, as a result of the matters referred to in [69] above. There is scope to refuse a request which is frivolous or vexatious, or if the information requested is trivial,24 but that is a long way from the circumstances of the present case. We do not consider that any of the matters that the appellant raised, and to which we have just referred, affected Mr Lee’s entitlement to have access to his personal information.
Result
[72] The appeal is declined. The respondent is entitled to costs. We hope that the parties will able to agree costs between themselves but they may submit memoranda if they are unable to do so.
..................................................................
Peters J
..................................................................
B Neeson
..................................................................
R Musuku
24 Ibid, s 29(1)(j).
2
2
0