Mitchell v Privacy Commissioner - [2017] NZHC 569

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-458 [2017] NZHC 569

UNDER THE Judicature Amendment Act 1972 section 4

IN THE MATTER OF

an application for Judicial Review

BETWEEN

KERRYN MITCHELL Applicant

AND

PRIVACY COMMISSIONER Respondent

Hearing: 16 October 2017

Appearances:

K Mitchell self-represented applicant
J Foster and N Walker for respondent

Judgment:

2 November 2017

JUDGMENT OF CULL J

[1] In late 2015, Ms Mitchell complained to the Privacy Commissioner (the Commissioner) about two separate disclosures of her personal information by the Department of Corrections (Corrections) to the Police. The Commissioner decided to investigate the complaint under Part 8 of the Privacy Act 1993 (the Act) on the basis it raised a possible interference with privacy in respect of privacy principle 11 (limits on disclosure of personal information) and rules 10 and 11 of the Health Information Privacy Code 1994 (the Code).

[2] Ms Mitchell seeks to judicially review the decision of the Commissioner to limit his investigation of her complaint. Ms Mitchell submits the scope of the investigation should have been wider into all the various privacy principles she
believes were breached.

MITCHELL v PRIVACY COMMISSIONER [2017] NZHC 569 [2 November 2017]

[3] The Commissioner opposes the application and argues it is meritless. The Commissioner submits he did not err in law when deciding to limit the scope of his investigation. The statutory scheme limits the Commissioner’s jurisdiction to investigating complaints that appear to be an interference with privacy and Ms Mitchell has not raised any factual foundation to support her claim that there were possible interferences in relation to other privacy principles.

[4] The key issues to determine in this proceeding are whether the Commissioner’s decision to limit the scope of his investigation was an error of law, or that he failed to examine mandatory considerations, took into account irrelevant ones, breached Ms Mitchell’s natural justice rights or made an unreasonable decision.

Factual background

[5] In late 2015, Ms Mitchell complained to the Commissioner about two separate disclosures of her personal information by Corrections to the Police. The first disclosure was in relation to 47 pages of PC01 forms containing Ms Mitchell’s information requests. The second disclosure was the release of a psychological report written for the Parole Board.

[6] The Commissioner decided to investigate Ms Mitchell’s complaint in relation to disclosures by Corrections under Part 8 of the Act. The investigation was limited to whether there was a possible interference with Ms Mitchell’s privacy in relation to privacy principle 11 (limits on disclosure of personal information)1 and rules 10 and
11 of the Code, which relate to the limits on the use and disclosure of health information. Ms Mitchell did not indicate any dissatisfaction with the Commissioner’s decision as to the scope of the investigation at the time the decision was made or during the investigation process.

[7] The Commissioner and Ms Mitchell discussed the complaint and the scope of the investigation on 3 November…

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 Mitchell v Privacy Commissioner

Details

AGLC: Mitchell v Privacy Commissioner [2017] NZHC 569
Case: [2017] NZHC 569
Decision Date: 2 November 2017

CaseChat Overview and Summary

Kerryn Mitchell sought judicial review of the Privacy Commissioner's decision to limit the scope of his investigation into two disclosures of her personal information by the Department of Corrections to the Police. The Commissioner investigated whether there was a possible interference with Ms Mitchell's privacy in relation to privacy principle 11 (limits on disclosure of personal information) and rules 10 and 11 of the Health Information Privacy Code, which relate to the limits on the use and disclosure of health information. Ms Mitchell submitted the scope of the investigation should have been wider into all the various privacy principles she believed were breached. The Commissioner opposed the application and submitted he did not err in law when deciding to limit the scope of his investigation. The Commissioner did not give any reasons why the other privacy principles were not investigated even though Ms Mitchell wanted a thorough investigation.

The court considered whether the Commissioner's decision to limit the scope of his investigation was an error of law, or that he failed to examine mandatory considerations, took into account irrelevant ones, breached Ms Mitchell's natural justice rights or made an unreasonable decision. The court found there was no error in the Commissioner's investigation, nor was there a breach of natural justice. The Commissioner's decision to limit his investigation was open to him under the statutory scheme. The standard of Wednesbury unreasonableness is a high one, and there was nothing in the Commissioner's investigation which reached the threshold of unreasonableness. The court was unable to uphold Ms Mitchell's claim for judicial review.

The court dismissed Ms Mitchell's application for judicial review.

Orders