VAB v Chief Executive, Department of Corrections

[2023] NZHC 2201

REDACTED JUDGMENT

NOTE: SUPPRESSION ORDERS AS SET OUT AT [62] OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-419

[2023] NZHC 2201

BETWEEN

VAB

Appellant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

19 July 2023

Appearances:

Appellant in person

M W McMenamin for Respondent

Judgment:

16 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 16 August 2023 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

VAB v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2023] NZHC 2201 [16 August 2023]

[1]    In May 2010, the appellant, VAB, was completing a sentence of home detention. During that time he met with Sonia Bakker, a Department of Corrections psychologist, on two occasions. Ms Bakker then disclosed personal information about VAB to an organisation, Early Start, which was involved with VAB’s family. She said she did this because, in the circumstances, she considered there was an unacceptably “high risk” of harm to VAB’s three month old baby girl.

[2]    In 2012, VAB complained to the Privacy Commissioner about this disclosure. However, the Privacy Commissioner held Ms Bakker was entitled to make the disclosure under an exception to information privacy principle 11 (IPP 11) in the Privacy Act 1993 (the Act). The relevant exception permitted disclosure if it was believed, on reasonable grounds, that it was necessary to prevent or lessen a serious and imminent threat to the life or health of another individual.1

[3]    A considerable time later, in 2017, VAB brought a claim in the Human Rights Review Tribunal (the Tribunal), again asserting that Ms Bakker had breached his privacy by the disclosure. The Tribunal dismissed the claim in 2022 on the same grounds as the Privacy Commissioner had.2 VAB now appeals that decision.

Grounds of appeal

[4]    VAB is self-represented. His notice of appeal did not clearly identify what he considered were errors in the Tribunal’s decision. Rather, it queried what VAB considered were factual discrepancies in Ms Bakker’s evidence and other official records which, by implication, suggested she did not have sufficient information to warrant disclosure to Early Start. It seems VAB’s primary concern was that he felt he was being labelled as a child sex offender when he had not disclosed information which would support that conclusion. Specifically, as he says, he “filed the notice of appeal to clear his name as this child sex offender fabricated by clinical registered Sonja Bakker for the Department of Corrections.”

1      Privacy Act 1993, s 6 principle 11(f)(ii).

2      VAB v Chief Executive, Department of Corrections [2022] NZHRRT 31 (Tribunal decision).

[5]    Mr McMenamin, for the respondent, has helpfully identified the issues on appeal as follows:

(a)Did the Tribunal err in finding that the Department of Corrections had established, on the balance of probabilities, that Ms Bakker believed, on reasonable grounds, that her disclosure was necessary to prevent or lessen a serious and imminent threat to the life or health of VAB’s baby?

(b)If the Tribunal did err, then, on the evidence before the Tribunal, has VAB established, on the balance of probabilities, that the breach of IPP 11 constituted an interference with his privacy (in terms of s 66(1)(b))?

(c)If that burden has been discharged, what, if any, of the statutory remedies should the Court in its discretion grant?

Factual background

[6]    Before considering those issues, it is necessary to outline, in more detail, the factual background to this appeal.

[7]    VAB was serving a sentence of home detention between 30 September 2009 and 29 June 2010 to be followed by six months of post-detention conditions.

[8]    VAB had been in a relationship with his partner since mid-2008. [They went on to have a daughter together]. While VAB was on home detention, she and her daughter would regularly visit VAB’s flat. An organisation known as Early Start, which provides family support services, was working with his family at this time and would supervise visits VAB had with his daughter every Friday.

[9]    Ms Bakker’s evidence before the Tribunal was that VAB was referred to her by his probation officer on 29 January 2010 for the purpose of a psychological assessment for treatment. The referral information which came from that probation officer included a comment that VAB had “come close to sexually abusing female children who were related to him”.

[10]   VAB first met with Ms Bakker on 6 May 2010. He missed his second appointment on 13 May 2010 but attended again on 20 May 2010.

[11]   Ms Bakker said that in the course of the two sessions she had with VAB, he disclosed to her that, at the age of 16, a sexualised incident had occurred where he had persuaded female family members aged 11-12 years to remove their underwear. He also described being concerned about having a female baby and possibly viewing this baby in a sexual way, and said that as a result he did not change the baby’s nappies for a number of weeks. While he said that he did not have any sexual thoughts about any children at the time, he did report features of what Ms Bakker considered was “sexual preoccupation”. At that point in time, in terms of potential risk to the baby, she did not think disclosure of her concerns to third parties was justified, saying the concerns could be clarified and managed or mitigated over the course of further assessment and treatment.

[12]   However, on 3 June 2010, she said she spoke to a representative of Early Start by telephone. During the telephone call, she said it was disclosed to her that notifications had been made to Child Youth and Family Services (CYFS) (now Oranga Tamariki), soon after the baby’s birth relating to an allegation that VAB had punched his partner. This additional information raised further concerns in Ms Bakker’s mind regarding VAB’s potential risk to others, including the baby.

[13]   She then reports that VAB “disengaged from the assessment”. Specifically, she received an email on 10 June from the probation officer advising VAB would not be attending any more sessions with her. Ms Bakker says the fact of his disengagement, along with reports indicating that VAB was experiencing escalating and significant conflict with his partner, gave rise to concerns regarding the immediate safety of the baby.

[14]   Ms Bakker then consulted with a senior psychologist at the Department of Corrections to review the risk, as is recorded in her case notes. Together they formed the view that the safety of the baby was the paramount consideration and, given there was no longer an opportunity to clarify the risk and manage or mitigate it, disclosure

to a third party was justified. Ms Bakker therefore disclosed her concerns, and the information she had which gave rise to it, to Early Start on 11 June 2010.

[15]   Ms Bakker said there was no opportunity to seek consent from VAB to make the disclosure. However, after the disclosure she tried to arrange a meeting with VAB to explain why the disclosure was passed on to Early Start, but it seems that did not occur.

The disclosure

[16]   Ms Bakker’s case notes record the disclosure in question. In them, she records she “said the following” to Early Start:

He has disclosed previous sexualised behaviour towards younger sisters when he was an adolescent. He said he stopped at progressing because he knew it was wrong (minimising it – saying nothing happened). But he feared intergenerational transmission and scared having girl baby and did not change nappies for long period.

[17]   As already outlined, VAB complained first to the Privacy Commissioner and then to the Tribunal about this disclosure. Both concluded that the breach of privacy was justified as the exception in IPP 11(f)(ii) applied. It is this decision that is under appeal.

Principles on appeal

[18]   VAB’s appeal is brought pursuant to s 123 Human Rights Act 1993. In determining the appeal, that section provides the Court may confirm, modify or reverse the order or decision appealed against, or any part of that order or decision, and may exercise any of the powers that could have been exercised by the Tribunal in the proceedings to which the appeal relates.3 The Court may, instead of determining the appeal, refer the whole or any part of the matter to which the appeal relates to the Tribunal for its further consideration.4

3      Human Rights Act 1993, s 123(6).

4      Section 123(7).

[19]   As this is a general right of appeal,5 the approach articulated by the Supreme Court in Austin, Nichols and Co. Inc v Stichting Lodestar applies.6 This requires the Court to form its own view on the merits. The Supreme Court has said the appellant bears an onus of satisfying the appeal Court it should differ from the decision under appeal. It is only if the appellate Court considers the appeal decision is wrong that it should interfere with it.

The legal framework

[20]   As the Tribunal noted, the disclosure is to be assessed in light of the legislation which was enforced at the time it was made.7

[21]IPP 11 of the Act at the time of the disclosure provides as follows:

An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds,–

…

(f)that the disclosure of the information is necessary to prevent or lessen the serious and imminent threat to –

…

(ii)the life or health of the individual concerned or another individual…

[22]   As Mr McMenamin explained, there are a number of component parts to the exception found at IPP 11(f)(ii). These are:

(a)Ms Bakker must have held the requisite belief that disclosure was necessary. This is a subjective enquiry.8

(b)That belief must have been held on reasonable grounds; an objective enquiry.

5      Taylor v Chief Executive of the Department of Corrections [2020] NZHC 383.

6      Austin, Nichols and Co. Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].

7      Tribunal decision, above n 2, at [15]; and Privacy Act 2020, sch 1 cl 9(1).

8      Urlich v New Zealand Police [2019] NZHC 457 at [23].

(c)The belief must be that disclosure was “necessary” for the authorised purpose. In Tan v Police, the Tribunal concluded something was “necessary” if it was “needed or required in the circumstances, rather than merely desirable or expedient”.9

(d)The purpose of the disclosure must be to “prevent or lessen a serious and imminent threat to … the life or health” of another individual, which incorporates the requirement that the disclosure is made to someone who is able to respond to the disclosure by lessening the threat.10

(e)The risk must be “imminent”. What is meant by “imminent” has been stated by this Court as being “urgent”.11 Here, the Tribunal proceeded on the basis that “imminent” does not mean something that will inevitably occur, but something that is near at hand and impending.12

The Tribunal’s decision

[23]   After traversing the relevant background, as set out in [6] to [15] above, the Tribunal set out VAB’s claim. VAB sought:13

(a)a declaration that Corrections interfered with his privacy by the disclosure;

(b)an order restraining Corrections from continuing or repeating that interference; and

(c)$250,000 in damages for humiliation, loss of dignity and injury to his feelings, saying the disclosure had significantly damaged his relationship with his partner and child.

9      Tan v Police [2016] NZHRRT 32, at [77], citing Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57 at [18].

10     Henderson v Privacy Commissioner [2010] NZHC 554 at [78].

11 At [78].

12 At [37].

13 At [12].

[24]   The Tribunal then outlined the legal framework provided by the Act before focussing on the question of whether the IPP 11(f)(ii) exception applied in this case.

[25]   The Tribunal accepted that Ms Bakker held the necessary subjective belief that disclosure was necessary to prevent or lessen the serious imminent threat to VAB’s daughter at the time she made the disclosure to Early Start. She had explained in evidence that the combination of VAB’s disengagement from the assessment process, “along with reports indicating he was experiencing escalating and significant conflict with his partner gave rise to concerns regarding the immediate safety of the baby, in the reported absence of a person who could act protectively”.14 The Tribunal held Ms Bakker’s evidence was corroborated by her case notes which were made around the time of the disclosure.

[26]   The Tribunal also held it was clear from her evidence that Ms Bakker felt strongly that Early Start was the appropriate agency as it had regular contact and established connections with the family and could provide protective action and monitoring.15

[27]   Turning to the question of whether this belief was objectively reasonable, the Tribunal accepted that there was an objective basis to Ms Bakker’s subjective belief.16 Circumstances had changed from when Ms Bakker had not considered the home circumstances to pose an immediate risk. This was because of VAB’s decision to not engage with Ms Bakker as the psychologist assigned to work with him to manage his risk.

[28]   The Tribunal noted that VAB was “aggrieved” by this situation.17 However, it found that, on the balance of probabilities, Ms Bakker had established that she believed on reasonable grounds the disclosure was necessary to prevent or lessen a serious and imminent threat to VAB’s daughter.18

14 At [32].

15 At [33].

16 At [40].

17 At [43].

18 At [44].

The issues on appeal

[29]   While at this juncture I would normally go on to discuss whether each of these conclusions was appropriate or should be set aside on appeal, I consider it is necessary to first address the various issues that VAB raises. Some of them do not, in my view, relate to the Tribunal’s decision and I do not address them.19 I only address those that appear to relate to the factual circumstances surrounding the disclosure.

[30]   First, VAB is critical of the fact the Department of Corrections relied on a consent form he signed in May 2010 as authorising the disclosure. The form in question records that he understands that if he discloses information that indicates he poses a risk of serious harm to himself or others, the psychologist will disclose information necessary to prevent or lessen this harm. VAB says that the Department of Corrections wrongly relied on a form that “wasn’t even a consent form” to make the disclosure and did so for nearly two years.

[31]   However, the Tribunal’s decision vindicated VAB’s views on this matter. The Tribunal held Ms Bakker could not show she believed that she had VAB’s authority to disclose the information at the time she made the disclosure, as a result of him signing this form. They agreed that this was “an attempt to justify the disclosure in hindsight”, and the Department of Corrections could not rely on that form as authorising disclosure.20 I therefore do not need to address this matter further.

[32]   The next issue raised by VAB is that there are inconsistencies in the records about when he attended interviews with Ms Bakker. In his written submission, he says he was interviewed twice by Ms Bakker on 6 May 2010 and 13 May 2010, and there were no more interview sessions beyond those dates. However, he then goes on to say that Ms Bakker told his probation officer that he had in fact attended a interview session on 3 June 2010. I understand these issues could be relevant as Ms Bakker relied on the fact he withdrew from the assessment process as justifying the disclosure.

19     For example, VAB’s belief he was kept on home detention beyond 29 June 2010.

20 At [26].

[33]   However, I am satisfied that Ms Bakker’s case notes make it clear that he attended on 6 May 2010 and 20 May 2010 and not at any other time. On 13 May 2010, she records, “[c]ase manager called and said [VAB] is sick … so he will not be attending today.” Her case notes then record she met with VAB on 20 May 2010. Her case notes related to 3 June 2010 record that: “[the probation officer] rung to say that [VAB] has cancelled today’s appointment because he had a row with his partner on Tuesday and does not feel like it.” Ms Bakker then records she “called [VAB] to discuss next appointment and to check how things were. He was guarded”. She then records her telephone call with the probation officer on 8 June 2010 and, on 10 June 2010, she records an email from the probation officer saying, “[VAB] will not be attending any more psych sessions”.

[34]   In suggesting that he did attend an interview session on 3 June 2010, VAB refers to the probation officer’s case notes which record that, on 3 June 2010, he has an appointment with Ms Bakker. However, I am satisfied this simply records that an appointment was made, it does not confirm attendance at that appointment. In the end, VAB agreed he had only seen Ms Bakker twice, and I am satisfied that the records show this was on 6 May 2010 and 20 May 2010.

[35]   The next issue VAB raises is a query about the notifications to CYFS about the risk VAB posed. VAB has queries about whether CYFS received any such notification, what the evidence was for the notification, and who filed a notification to CYFS on 16 July 2010. This appears to be relevant in that knowledge of a CYFS notification was part of the suite of circumstances that caused Ms Bakker to revisit her initial view on disclosure, and to decide such disclosure was necessary.

[36]   Ms Bakker’s evidence was that on 3 June 2010, in a telephone call to Early Start, she was made aware that a notification had been made to CYFS, soon after the baby’s birth, relating to an allegation that VAB had punched his partner. Ms Bakker also noted that information in her case notes for 3 June 2010. However, the two notifications which were made to CYFS appear to be later than this. There is a notification from Early Start on 30 June 2010, (although it is erroneously recorded in CYFS’ case notes as being from Family Start). There is then a notification sent from the Department of Corrections, with Ms Bakker’s involvement, and faxed to CYFS on

16 July 2010, as recorded in her case notes. CYFS also has a record of the notification on 16 July 2010 from the Department of Corrections.

[37]   While VAB says that  a  letter  from  the  Office  of  the  Ombudsmen,  dated 7 May 2012, says the notification was not from Ms Bakker, I consider this is because it was sent from the Department of Corrections, with her input, rather than from her personally. I am satisfied VAB is wrong when he says that CYFS have never received any notification about VAB being violent to the mother of his children or otherwise a risk to the family. It is clear that CYFS received these two notifications. However, there is no evidence of one prior to the disclosure. That said, I am satisfied Ms Bakker understood there to have been one as that is recorded in her 3 June case notes, and it is her understanding which is relevant to her decision.

[38]   The next query VAB has is why both Ms Bakker and his probation officer agreed there was no immediate risk on 8 June 2010 and then, only three days later, resolved to breach his privacy by making the disclosure.

[39]   In my view, this is clearly answered by Ms Bakker’s evidence. Ms Bakker was already concerned by early June. However, she explains at that point she did not discuss the disclosure with Early Start because she considered she had the opportunity to engage with VAB through their ongoing appointments and could manage risk issues in this way. The tipping point for her was when VAB advised, through his probation officer, that he was disengaging from the assessment process. This meant she no longer had an opportunity to work with him to clarify what risk he posed and how it could be managed. This, along with the fact he was experiencing escalating and significant conflict with his partner, elevated the existing concerns to the point where she considered disclosure was justified.

[40]   Finally, an issue of particular concern to VAB was that he considered he had only disclosed sexualised thoughts to Ms Bakker and his probation officer, but that disclosure came to be recorded, in various documents, as sexualised “behaviour”. VAB was adamant that “thoughts” and “behaviour” were two different things and, in his view, “behaviour” implied actual sexual contact which he had never disclosed or

admitted to.    He was critical of Ms Bakker and others suggesting he disclosed sexualised “behaviour” and not, as he saw it, sexualised thoughts only.

[41]   In my view, VAB’s concerns arise out of a misunderstanding over what was meant when individuals recorded concerns about “sexualised behaviour”. Ms Bakker is referring to what she describes as “a sexualised incident [which] had occurred where he had persuaded female family members aged 11-12 years to remove their underwear”. Ms Bakker’s notes then record “he has disclosed previous sexualised behaviour towards younger sisters when he was adolescent.” She then records the following in a letter to the New Zealand Psychologists Board:

I would like to note that some of VAB’s concerns may arise due to a different understanding that he and I have of the incident that he described. He described that he “nearly went with his sisters” but his description of this incident indicated to me that sexualised behaviour appeared to have occurred, although this did not appear to have included physical contact.

[42]   I consider, by sexualised behaviour, Ms Bakker was referring to the willingness to watch and encourage the sisters removing the underwear. She is not suggesting that he in fact indecently assaulted the sisters. I am satisfied there was no intention to suggest that the reference to sexualised behaviour involved contact offending.

[43]   In my view, that also addresses VAB’s concern that he has been identified as a sex offender. He has not, and nothing that the respondent did could have that outcome. VAB could only be classified as a sex offender if he was charged with a relevant sex offence and found guilty of it in a court.

[44]   Having set out my findings on those issues raised by VAB which could be relevant to the Tribunal’s decision, I now consider whether the Tribunal’s conclusions on the critical issues were appropriate and whether its decision should be modified or reversed on any ground.

Did the Tribunal err in finding that Ms Bakker believed, on reasonable grounds, that disclosure was necessary under IPP 11(f)(ii)?

[45]   Ms Bakker gave evidence both in her affidavit and orally that she believed VAB was at risk of harming the baby. This included her saying that:

… right prior to the disclosure the probation officer had noted that VAB appeared unkempt, his presentation was deteriorating, talkative but contradicting himself, and at that point there was concerns that some acute kind of risk factors that if harm to baby was going to materialise, that this could be the time that it occurred because of these factors, the increased hostility, the emotional collapse, and that he did have that opportunity to harm the baby.

[46]She also said that once VAB disengaged from treatment, she considered:

… all the factors in combination, when looking at those [risk concerns], when weighing up obligations to maintain confidentiality and obligations to protect third parties from harm, it seems that there was an unacceptable high risk of harm to this baby, and at that point the decision therefore was made that a disclosure needed to be made.

[47]   Ms Bakker’s case notes also support a finding that she had the relevant subjective belief. She recorded feeling that Early Start “needs to know” and that when she contacted Early Start, “I spoke to somebody who would be able to take on that responsibility and monitor any risk to the baby and manage that as appropriate”.

[48]   In my view, there was ample material from which the Tribunal could conclude that Ms Bakker genuinely believed disclosure was necessary to avoid serious and imminent harm to the baby. Furthermore, as already discussed, Ms Bakker clearly explained why her concerns had escalated between 8 June 2010 and 10 June 2010.

[49]   In terms of whether there was an objective basis to Ms Bakker’s subjective belief, that is, in my view, supported by the same material. As Mr McMenamin points out, there were a number of related grounds for Ms Bakker’s belief which, taken as a whole, provide reasonable grounds for it.

[50]   The first  was the vulnerability of the baby.  The baby was  [young], and    Ms Bakker was concerned that VAB’s partner had significant mental health concerns. Furthermore, VAB himself had reported that he had not formed emotional bonds with the baby, something which “can act as barriers to us harming [other people]”. In these circumstances, where the other parent was not in a good position to protect the baby, it was reasonable for Ms Bakker to have reference to the vulnerability of the baby when assessing the risk of harm.

[51]   Ms Bakker also had regard to the incident where VAB had persuaded female family members, aged 11-12 years, to remove their underwear. While Ms Bakker acknowledged that contact sexual offending did not occur, it was reasonable for her to have regard to this self-reported past sexual incident. That was, of course, amplified by VAB’s own concern that he could sexually abuse the baby which is why he did not change nappies, a factor which Ms Bakker described as a “red flag for us”.

[52]   There were also behavioural factors which increased Ms Bakker’s concerns. In addition to VAB’s self-reported sexual pre-occupation, Ms Bakker said that VAB “didn’t demonstrate any insight about what was happening, he was quite guarded, so instead of us being able to work with him to manage these concerns, this ability was reducing …”. She described his cognitive distortions around minimising the historical sexual incident as a risk factor.

[53]   Furthermore, prior to the disclosure, VAB disclosed a row with his partner where he threw the “baby and partner out of the house in the rain [and] burnt baby’s photos”. This again, for Ms Bakker, showed a lack of restraint discouraging VAB from acting on sexual thoughts or intentions.

[54]   On 10 June, Ms Bakker believed disclosure was necessary because “there were some acute risk factors present” including increased hostility potential and emotional collapse. In the absence of the opportunity to manage that risk through assessment interviews, I am satisfied it was reasonable to consider there was an unacceptably high risk of harm to the baby and the disclosure needed to be made. The Tribunal was right to conclude there were reasonable grounds for doing so.

[55]   While VAB did not focus on the wording of s 11(f)(ii) and whether all the requirements were made out, I am also satisfied that the Tribunal’s articulation of what was required to constitute imminent harm was appropriate. It did not need to be inevitable harm. Harm that was “near at hand and impending” would suffice.

[56]   There was also, understandably, no challenge to a risk of sexual offending against the baby as constituting serious harm.

[57]   Given the combination of factors identified by Ms Bakker in her evidence to the Tribunal, there were ample grounds on which to conclude that disclosure was necessary to prevent or lessen a serious and imminent threat to the baby.

[58]   Having reached  the  conclusion  that  the  disclosure  was  justified  under IPP 11(f)(ii), it is not necessary to deal with whether VAB’s privacy was breached and what remedy he should be granted.

Result

[59]The appeal is dismissed.

Suppression

[60]   In the Tribunal, final suppression orders were made in respect of the name and identifying details of the plaintiff (VAB) and his daughter and her age. There was also an order made prohibiting search of the Tribunal file without leave of the Chairperson or Deputy Chairperson of the Tribunal. Any request to search the file was to be notified to the parties so they could be heard in respect of the application.

[61]   Those orders are clearly appropriate, and the publication of this decision needs to comply with those orders for suppression.

[62]   Accordingly, the name and identifying details of the appellant and his daughter are suppressed, and the High Court file is not to be searched without:

(a)leave of a Judge of this Court; and

(b)first allowing the parties the opportunity to be heard on any such request.

Solicitors:

Crown Law, Wellington

Copy To: VAB