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H v Attorney-General

H v Attorney-General

Case [2024] NZHC 2317 19 August 2024

Contract Formation

Admissibility of Evidence

Specific Performance

Access to Information

Statutory Interpretation

Statutory Construction

Declaratory Relief

Privacy Law

Administrative Law

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-361

[2024] NZHC 2317

UNDER the Declaratory Judgments Act 1908

IN THE MATTER OF

the proper interpretation of s 7 of the Privacy Act 1993

AND

the proper interpretation of s 24 of the Privacy Act 2020

BETWEEN

H

First Plaintiff

AND

S

Second Plaintiff

AND

ATTORNEY-GENERAL

sued for and on behalf of the Ministry of Social Development

First Defendant

Continued…

Hearing: 18 April 2024

Appearances:

S M Cooper and F D G Brailsford for the Plaintiffs

K M Eckersley and S J Edwards for the First, Second, Third and Sixth Defendants
Appearances excused for the Fourth and Fifth Defendants

Judgment:

19 August 2024

JUDGMENT OF PALMER J

Solicitors
Cooper Legal, Wellington
Crown Law Office | Te Tari Ture o te Karauna, Wellingto

H v ATTORNEY-GENERAL [2024] NZHC 2317 [19 August 2024]

ATTORNEY-GENERAL
sued for and on behalf of Oranga Tamariki Second Defendant

ATTORNEY-GENERAL
sued for and on behalf of the Ministry of Justice Third Defendant

PRINCIPAL FAMILY COURT JUDGE
Fourth Defendant

PRINCIPAL YOUTH COURT JUDGE
Fifth Defendant

ATTORNEY-GENERAL
sued for and on behalf of the Crown Response to the Abuse in Care Inquiry Interagency Group
Sixth Defendant

Summary

[1] The plaintiffs are survivors of abuse which they say they suffered while in state care.1 They have filed or intend to file proceedings suing the Attorney-General, on behalf of the Ministry of Social Development (MSD). The plaintiffs have expressed an intention to resolve such claims through MSD’s alternative dispute resolution process. To assist with this, the plaintiffs have requested access to their state care records from MSD, which has withheld or redacted parts of their records under the Privacy Act 1993 (the 1993 Act) and the Privacy Act 2020 (the 2020 Act) (together, the Privacy Acts). MSD says that reports and plans ordered by and furnished to courts need to be requested from the courts. The plaintiffs seek declarations that the Privacy Acts do not provide a basis for the relevant government agency to withhold from them their own personal information.

[2] The issue is whether the rights of claimants to access their personal information under the Privacy Acts are limited by specific provisions in welfare legislation and court rules. I conclude they are not. The texts of the Privacy Acts, interpreted in light of their purpose and context, recognise the rights of the plaintiffs to access their own personal information records as adults. The specific provisions of most of the welfare legislation, and the court rules, and provisions empowering the making of court rules, do not impose a prohibition or restriction, or regulate the manner in which information is to be made available, in relation to the personal information of the child or young person once they are adults, for the purposes of ss 7 or 24 of the Privacy Acts. To the extent some provisions in welfare legislation do…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading H v Attorney-General

Details

AGLC: H v Attorney-General [2024] NZHC 2317
Case: [2024] NZHC 2317
Decision Date: 19 August 2024

CaseChat Overview and Summary

- **Parties and Background:**
The case H v Attorney-General involves two plaintiffs, H and S, who were in state care and now seek access to their personal information held by various government agencies, including the Ministry of Social Development (MSD), Oranga Tamariki, and the Ministry of Justice. They argue that the Privacy Act 1993 and the Privacy Act 2020 provide them the right to access their own personal information, which the agencies have withheld or redacted under provisions in welfare legislation and court rules.

- **Legal Issues:**
The primary legal issue is whether the right of claimants to access their personal information under the Privacy Acts is limited by specific provisions in welfare legislation and court rules. The plaintiffs argue that these provisions do not impose a prohibition or restriction on their right to access their own information as adults. The Crown contends that the agencies are not obligated to release the information unless a court order permits it.

- **Court's Reasoning and Outcome:**
Palmer J concluded that the text of the Privacy Acts, interpreted in light of their purpose and context, recognizes the right of the plaintiffs to access their own personal information records as adults. The specific provisions of most of the welfare legislation and court rules do not impose a prohibition or restriction, or regulate the manner in which information is to be made available, in relation to the personal information of the child or young person once they are adults. The Court declared that the plaintiffs' rights to access their own personal information under the Privacy Acts are not limited by the provisions of the Oranga Tamariki Act 1989, the Care of Children Act 2004, the Children and Young Persons Act 1974, the Child Welfare Act 1925, the Guardianship Act 1968, and the District Court (Access to Court Documents) Rules 2017 or Family Court Rules 2002, unless a court has ordered that specific personal information not be provided to the person concerned or another exception in the Privacy Acts applies.

- **Final Orders:**
The Court declared that the plaintiffs' rights as adults to access their own personal information under the Privacy Acts, in documents held by the defendant agencies that were ordered to be created by courts, are not limited by the provisions of the Oranga Tamariki Act 1989, the Care of Children Act 2004, the Children and Young Persons Act 1974, the Child Welfare Act 1925, the Guardianship Act 1968, and the District Court (Access to Court Documents) Rules 2017 or Family Court Rules 2002.

Orders