Hudson v Attorney-General - [2020] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-890

[2020] NZHC 1622

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review, the Privacy Act 1993 and Corrections Act 2004

BETWEEN

STEPHEN THOMAS HUDSON

Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing: 8 June 2020

Appearances:

Applicant in person (via AVL) J B Watson for respondent

Judgment:

8 July 2020

RESERVED JUDGMENT OF DOBSON J

[Respondent’s application to dismiss the proceeding]

[1] In November 2018, Mr Hudson commenced this proceeding alleging that on various occasions in 2016 to 2018 the Department of Corrections on whose behalf the respondent is sued (the Department), when responding to requests for personal information under the Privacy Act 1993 (the Act), had failed to provide prisoners with advice of their right to request correction of any personal information maintained about them. In addition to alleging that an omission to provide that advice amounted to breaches of relevant privacy principles in the Act, Mr Hudson also claimed that the omission amounted to unfair conduct for the purposes of ss 6(1)(f)(i) and (ii) of the Corrections Act 2004.

HUDSON v THE ATTORNEY-GENERAL [2020] NZHC 1622 [8 July 2020]

[2] The Department applied to dismiss the proceeding, having filed an appearance under protest to jurisdiction. The grounds for seeking dismissal were that the Information Privacy Principles (IPPs) in the Act (other than IPP 6(1), which was not relevant to the pleaded complaints) do not create rights enforceable in a court of law. Nor, on the Department’s argument, could alleged failures to comply with IPPs amount to a breach of a different statute, namely the Corrections Act.

[3] The IPP relevant to Mr Hudson’s complaint is principle 6 as set out in s 6 of the Act in the following terms:

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.

[4] The status of s 6 principles is addressed in s 11 of the Act in the following terms:

11 Enforceability of principles

(1)The entitlements conferred on an individual by subclause (1) of principle 6, in so far as that subclause relates to personal information held by a public sector agency, are legal rights, and are enforceable accordingly in a court of law.

(2)Subject to subsection (1), the information privacy principles do not confer on any person any legal right that is enforceable in a court of law.

[5] The Act has its own comprehensive scheme…

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 Hudson v Attorney-General

Details

AGLC: Hudson v Attorney-General [2020] NZHC 1622
Case: [2020] NZHC 1622
Decision Date: 8 July 2020

CaseChat Overview and Summary

In this case, the applicant, Mr. Hudson, brought a proceeding against the Attorney-General, alleging that the Department of Corrections, on whose behalf the respondent was sued, had failed to provide prisoners with advice of their right to request correction of any personal information maintained about them, in accordance with the Privacy Act 1993 and Corrections Act 2004. The Department applied to dismiss the proceeding, arguing that the Information Privacy Principles (IPPs) in the Privacy Act do not create rights enforceable in a court of law, nor could alleged failures to comply with IPPs amount to a breach of a different statute, namely the Corrections Act.

The court considered the relevant IPP and the statutory scheme for considering complaints of breaches of the IPPs. It was argued for the Department that because the statutory process had not been exhausted, the Court did not have jurisdiction to entertain an allegation of reviewable error by the Department. Mr. Hudson argued that he could not take the complaint any further within the statutory process because he treated a section of the Act as requiring an investigation to have been completed by the Privacy Commissioner as a pre-requisite. However, after a number of exchanges with Mr. Hudson in light of submissions made, Mr. Hudson conceded that there was an avenue open to him under the procedures in the Act that had not been pursued.

The court found that the Privacy Act provides a code for dealing with personal information, including complaints about the manner in which organisations control personal information, which is intended to be self-contained to an extent that it should not allow for judicial review in the circumstances advanced by Mr. Hudson in this case. The court also found that the challenge regarding the Prisons Operations Manual provision was untenable, as the procedures stipulated in the Privacy Act were aspirational rather than legally enforceable obligations. The court granted the application to dismiss the proceeding.

There will be no order as to costs.

Orders