Decision No 37/99 - Proceedings Commissioner v Commissioner of Police

Sat, 13 May 2006 16:28:05 +1200

Complaints Review Tribunal Decision

(Because of its importance and the general failure of newspapers to report it adequately, the Commissioner has obtained permission to publish the decision on this website)

IN THE MATTER

Decision No. 37/99
Reference No. CRT 23/99
of the Privacy Act 1993

BETWEEN

PROCEEDINGS COMMISSIONER

Plaintiff
AND

COMMISSIONER OF POLICE

Defendant

BEFORE THE COMPLAINTS REVIEW TRIBUNAL

S C Bathgate - Chairperson
G P Searancke - Member
W A C Abbiss - Member

HEARING at AUCKLAND on the 29th day of November 1999

APPEARANCES

Plaintiff in person and C Blake for Plaintiff J Jelas for Defendant

DECISION

The plaintiff in these proceedings has alleged that the defendant committed breaches of Information Privacy Principles 5 and 11 when personal information about a person for whom a police officer had obtained a temporary protection order was disclosed to media organisations. This matter has been the subject of an investigation by the Privacy Commissioner so that, pursuant to s. 82(2) Privacy Act 1993, we are satisfied that we have the jurisdiction to hear and determine these proceedings.

BACKGROUND

In October 1996 the complainant was aged 20 and living in a de facto relationship which was very violent. She had sought the assistance of the police on a number of occasions. Her boyfriend was known to the police because of his assaults on other women. A local police sergeant became concerned about the complainant's safety. The complainant's parents, who did not live near her were also very concerned about her safety. The complainant was not able, at that time, to be persuaded to leave the relationship. For these reasons the sergeant and the parents applied to the Family Court for a temporary protection order pursuant to the Domestic Violence Act 1995. They did this without the complainant's knowledge. Following the making of the application, but prior to the making of the protection order, the sergeant contacted a friend who was an editor of a newspaper. He says he contacted this person because he wanted to find out whether this application was the first made by third parties without the knowledge of the person for whom the order was sought. He says he was unable to obtain this information within the police force and there were times when some journalists knew more about these matters than police did.

In making this contact the sergeant disclosed part of the contents of a statement previously made to the police by the complainant following an assault by her boyfriend. Some information which enabled the newspaper to identify the complainant and her parents was also disclosed. A news story was printed in the newspaper about the application. It included reference to injuries sustained by the complainant in past assaults which were outlined in the complainant's police statement. The story did not identify the complainant but it included some additional personal information about her - her age and the occupation of her parents and the region in New Zealand in which they reside.

Following the publication of this story the sergeant was contacted by other newspaper and television journalists. He appeared on a television programme and spoke about the case. The complainant's father was also interviewed on television. Reporters were present at the Family Court when the sergeant uplifted the protection order for service on the complainant and her boyfriend. The reporters followed the sergeant to the complainant's house and filmed the complainant's boyfriend being led away by police.

The complainant alleges that, notwithstanding the pixellation of her father’s face and her boyfriend’s face on television it was still possible for many of her friends and neighbours from the small town in which she grew up to identify her from the newspaper and television reports of the sergeant’s actions. She said she was angered, humiliated and embarrassed by the media attention. She said a small number of people knew that she was in a violent relationship but only one or two knew the details of the violence she had suffered. She did not want anyone to know those details because she was embarrassed by them. These were the details which were contained in the media stories. She said her humiliation was compounded by not knowing that the sergeant was applying for a protection order that she did not want at that time. She said that as a result she was estranged from her parents for some months following her father’s appearance on television.

For these reasons she lodged a complaint with the Privacy Commission that her privacy had been breached by the actions of the police sergeant.

THE LAW

INFORMATION PRIVACY PRINCIPLE 5 provides:

Storage and security of personal information

An agency that holds personal information shall ensure:
(a) That the information is protected, by such security safeguards as it is reasonable in the circumstances to take, against--

(i) Loss; and
(ii) Access, use, modification, or disclosure, except with the authority of the agency that holds the information; and
(iii) Other misuse; and

(b) That if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or unauthorised disclosure of the information.

INFORMATION PRIVACY PRINCIPLE 11 provides:

Limits on disclosure of personal information

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,--

(a) That the disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained; or
(b) That the source of the information is a publicly available publication; or
(c) That the disclosure is to the individual concerned; or
(d) That the disclosure is authorised by the individual concerned; or
(e) That non-compliance is necessary--

(i) To avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or
(ii) For the enforcement of a law imposing a pecuniary penalty; or
(iii) For the protection of the public revenue; or
(iv) For the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation); or

(f) That the disclosure of the information is necessary to prevent or lessen a serious and imminent threat to--

(i) Public health or public safety; or
(ii) The life or health of the individual concerned or another individual; or

(g) That the disclosure of the information is necessary to facilitate the sale or other disposition of a business as a going concern; or
(h) That the information--

(i) Is to be used in a form in which the individual concerned is not identified; or
(ii) Is to be used for statistical or research purposes and will not be published in a form that could reasonably be expected to identify the individual concerned; or

(i) That the disclosure of the information is in accordance with an authority granted under section 54 of this Act.

THE HEARING

The complainant, the police sergeant and a victim support officer who accompanied the sergeant when the protection order was served gave evidence.

For the plaintiff it was submitted that at the very least the evidence showed that the following information was disclosed to the editor of the Sunday Star Times:

The complainant's age
That she was in a violent relationship
That Police intended to apply for a protection order without her knowledge
Her parents supported this action
Her father's address and occupation
The date she began the relationship with the boyfriend
That she had left him for 6 months to live with her family but went back to him
The number of charges for assaulting women the boyfriend faced over the previous 10 years and the sentences
The date of the last assault on the complainant
The injuries suffered by the complainant as a result of that assault
The name of the Family Court at which the application was made

It was further submitted that because there was no evidence from the police sergeant about the training he had received about the obligations of the defendant under the Privacy Act in respect of personal information held by the defendant this was sufficient to show that the defendant did not take reasonable safeguards against unauthorised disclosure of information held about the complainant. It was further submitted that the General Instruction on the Police Media policy is problematic (with respect to the defendant's obligations under IPP 5) because it qualifies a large number of police officers to speak to the media but does not provide adequate guidelines on the privacy interests to be considered when making such disclosures. That problem is illustrated by the fact that the media interest in this matter was created by the actions of the police sergeant in contacting the media prior to the service of the order. The media attention was thus neither accidental nor unexpected.

On the issue of disclosure it was submitted that the call to the editor constituted the first disclosure. Leading the media to the complainant's address was another. The first was a verbal disclosure and the second was a disclosure by actions and behaviour. The second was a disclosure of the complainant's identity.

On the issue whether the disclosures were about an identifiable individual it was submitted that the details provided in the newspaper story were sufficient to enable the complainant to be identified by close friends and relatives. By creating media interest in the service of the protection order the actions of the police sergeant made the complainant identifiable to the media who followed him. These disclosures led to further disclosures by the media which widened the circle of those to whom the complainant became identifiable - for instance neighbours.

The defendant accepted that information was provided to the Sunday Star Times, the NZ Herald and Television New Zealand. It was submitted that the information provided did not reach the threshold in the Act of personal information about an identifiable individual. This is because the only people able to identify the complainant (if there were any) from the news reports were those who already knew a lot about her.

In respect of the allegation of a breach of IPP 5 it was submitted that the defendant took all reasonable steps to protect from disclosure the complainant's address by television footage. The officer took steps to avoid having the media follow him from the Court to the complainant's address. It would have been harmful to the complainant's welfare for the police officer to delay serving the protection order whilst he was being followed by the media.

On the issue whether the evidence established any interference with the complainant's privacy it was submitted that there was no direct evidence that anyone did in fact identify the complainant as the result of the news stories, or that they acquired additional information about her or that they did so from news stories and not from information provided by the complainant's family. It was further submitted that the complainant cannot have suffered significant humiliation if the only people who could identify her from the news stories were those who already knew she was in a violent relationship because learning the details of the violence was not much different from knowing she was in a violent relationship.

The defendant also submitted that regard should be had to the following factors when assessing damages:

The police officer was acting in good faith in trying to protect the complainant
There was a public interest element to the domestic protection application
The complainant's father consented to media involvement
* The complainant participated in a subsequent magazine article in which she was named and photographed

FINDINGS

Breaches of information privacy principles 5 and 11 have been alleged by the plaintiff. Before addressing those Principles we are required to determine whether there was, in fact, any disclosure and, if so, whether there was a disclosure of personal information by the defendant.

Before doing so it is necessary to restate the Tribunal's position on the issue of its jurisdiction to hear and determine matters which were not specifically covered by the Privacy Commissioner's investigation. The defendant submitted that in respect of two of the plaintiff's allegations (disclosure of the complainant's parents names and address and the way in which some members of the public became aware of the complainant's identity) the Tribunal did not have jurisdiction because of the effect of s. 82(1)(a) Privacy Act 1993. This issue was dealt with as follows in C v NZ Insolvency Service (CRT 30/98):

The Tribunal's jurisdiction to hear and determine proceedings brought by those who have laid a complaint with the Privacy Commission and had their complaint investigated but not resolved to their satisfaction is founded in sections 82 and 83 Privacy Act 1993. Section 82 requires the Tribunal to be satisfied that the defendant named by the plaintiff is a person in respect of whom an investigation has been conducted under Part VIII of the Act in relation to any action alleged to be an interference with the privacy of an individual. We are satisfied that the plaintiff laid a complaint,… We are also satisfied that the defendant was a person in respect of whom an investigation was conducted following the receipt of that complaint…

The Tribunal has no powers to review the Commissioner's investigation process or any part of it. It must simply be satisfied than an investigation has been completed. The submissions of the defendant and the Commissioner (that the Tribunal has jurisdiction only to consider the particular matters covered by the investigation, regardless of those matters raised by the complaint) raise the issue whether the way in which a complaint is investigated is determinative of the Tribunal's jurisdiction. This would involve an inquiry by the Tribunal of the particulars investigated, or, in other words, a review of the investigation process. That is not what sections 82 or 83 say and it is not within the power of the Tribunal to do so. We do not therefore accept that the way in which the plaintiff's complaint was investigated should affect or limit our jurisdiction to hear and determine proceedings …

Was there a disclosure?

There was a suggestion by the defendant that there was no disclosure by the defendant to the news media of the information which was televised (the service of the order) because there was no lawful way for the defendant to prevent the television media personnel from following the sergeant to the complainant's address. This suggestion ignores the actions of the sergeant which preceded the involvement of the television news media.

The evidence showed that at about the time the sergeant made the application to the Family Court for the temporary protection order he contacted a friend who was also an editor of the Sunday Star Times. He advised the editor that he was making the application and that he thought it might be the first time police had applied for an order without the knowledge of the person the order would be designed to protect. The sergeant accepted that he was the only source of the information which subsequently appeared in the newspaper of 20 October 1996. That story contained details which can only have come from a statement the plaintiff had made to police after an assault on her some time previously.

It follows from this that information was disclosed by the sergeant to the editor. Following the publication of that story the sergeant was contacted by a journalist from the New Zealand Herald and a journalist from Television New Zealand. On Monday 21 October 1996 he uplifted the protection order from the Family Court for service on the complainant's boyfriend. Also at the Court were television journalists. They clearly had sufficient information about the case to know that the sergeant needed to uplift the order, would be uplifting it when he did, and from the particular Court from which it was made. That was information which was disclosed to them, either directly, or indirectly. In our view, it matters not whether the disclosure of this type of information was made directly or was able to be deduced from other information disclosed. On this point we accept the submissions of the plaintiff - that the act of disclosing information is not limited to the use of words or language, it includes behaviour which results in information being disclosed. We think this means that the focus, in the determination whether there has been a disclosure, is on the result of a transfer of information and not the means by which that result was achieved. It follows that it will matter not whether a disclosure was intended by the person responsible for the transfer of information.

The sergeant said he did not intend the television news media to be present when the order was served. Since his intentions are immaterial we accept the plaintiff's submission that, by his actions (the sergeant was followed to the complainant's address by the television journalists) the sergeant disclosed still more information: the complainant's address.

It is clear then that we accept that there were a number of disclosures of information held by the defendant. The first occurred during the telephone call to the editor of the Sunday Star Times. A number of other disclosures occurred subsequently. For the purposes of this matter it is not necessary for us to detail them all.

Was it personal information?

Personal information is defined in the Privacy Act as information about an identifiable individual. In this case the personal information at issue is information about the complainant which was held by the defendant. It is not limited to information which simply identifies her. It includes, in this case, information about her recorded in statements made by and about her. Thus the information contained in the statements she made about the type of injuries she sustained is information about her. The information which was disclosed to the newspaper editor included her age, the name of her parents, their occupation and the region in which they lived. That is information which is personal information about the complainant.

We think it was also personal information which had the capacity to identify her to some members of the public. The complainant said in evidence that some members of her extended family knew her address, her age, that she was living in a violent relationship and that her parents were concerned for her. They did not know the details of the injuries sustained by her. She contends they were able to put the information about her which they already knew with the information about her in the news story to conclude that she was the person the sergeant was seeking to protect. If they were unable to put the information together to identify her as a result of the newspaper story they were better equipped to do so following the television coverage which included footage of her address and boyfriend.

It follows that we do not accept the defendant's submission that an identifiable individual's privacy should not be regarded as breached if an identification can only be made as a result of prior knowledge by some members of the public of an individual. We think this would limit identifiability to identification by strangers and we do not accept that this is what the definition of personal information says. In any event it appears that the complainant's identity was disclosed to strangers: as soon as she answered the sergeant's knock on the door she was identified to those members of the television media who followed the sergeant. In other words it is not necessary, on this issue of identifiablility, that an individual should be able to be identified to the world. It is enough that they are able to be identified by anyone who can make an identification as the result of the receipt of personal information not previously known.

For these reasons we are satisfied that the defendant disclosed personal information about the complainant following the sergeant's contact with the newspaper editor. We turn now to consider whether, as a result of these disclosures, any of the Information Privacy Principles were breached. The plaintiff alleges breaches of IPP 11 and IPP 5. We consider each in turn as follows.

Information Privacy Principle 11

This information privacy principle prohibits the disclosure of personal information to third persons unless one of the listed exceptions applies. The exception relied upon by the defendant is that referred to in IPP 11(h)(i), that the information was used in a form in which the complainant was not identified. We accept that the intention of the sergeant when the information about the complainant was disclosed to the newspaper was to use her information in a way in which she would not be identified. The result, however, was that she was able to be identified by some people, particularly after the television coverage of the matter. But for the initial disclosure the further identifying information would not have been broadcast. The information initially disclosed was ultimately used in a form in which the complainant was identified. This exception is therefore one on which the defendant cannot rely.

Information Privacy Principle 5

The effect of the allegation of a breach of IPP 5 is to assert a systemic reason (institutional failure to comply with the requirements of the Privacy Act) for the disclosure. As we indicated in a previous decision about IPP 5 (W v Department of Social Welfare (CRT 4/98)) where the alleged breach arose from an unauthorised disclosure we think that the correct approach to the question whether the defendant complied with the requirements of IPP 5 is to first define the problem and work back to determine whether there were sufficient security safeguards which in the circumstances it was reasonable for the agency to take to address or account for that problem.

In this case the allegation is that there were either no or badly understood systems or protocols or rules for the protection from disclosure of personal information held by the defendant. This information privacy principle places the onus on the defendant to show that these systems or rules were in existence and properly understood by its officers and other staff at the time the disclosure occurred. In the W case referred to above we indicated that those issues would be determined by the answers to the following questions:

what training did this officer have to assist him to understand to whom and when information of this kind could be given?
what was his understanding of the consequences of failing to follow any guidelines which were in place?

There was no direct evidence that the sergeant had received any training in the requirements of the Privacy Act. There was an indication that all police officers receive training in the requirements of the Privacy and Official Information Acts in a half day session. There was no evidence of the content of that training or what measures are in place to ensure that police officers understand and are able to implement the important messages of that training. Police Instructions on relationships with the media (20 pages of instruction) contain the following sole reference to the requirements of the Privacy Act:

(1) The provisions of the Official Information Act and the Privacy Act apply to media requests for access to police files, documents, videos, photographs, tape recordings and archival material.

Aside from the concern that the requirements of these statutes are rather wider than a reference to them on guidelines to relationships with the media suggest there is no reference to the way in which they apply nor the matters an officer must take into account upon receipt of any media request for information. In this case media interest was created by the sergeant. The guidelines are silent on what considerations apply to a decision to initiate or stimulate media interest in personal information held by the defendant.

The facts of this case demonstrate an urgent need for guidelines to assist police officers to understand when it is appropriate to disclose personal information and when it is unlawful to disclose the same information.

For these reasons we find that the defendant has breached both IPP 5 and IPP 11.

Humiliation

We are now required to determine whether there has been an interference with the complainant's privacy in terms of s. 66(1) of the Act. We have to decide whether the complainant suffered significant humiliation, loss of dignity or injury to feelings as a result of these breaches of the information privacy principles.

The complainant said that she had always wished to keep private the details of the injuries she suffered at the hands of her former boyfriend. She was embarrassed that others who knew her now knew these details as a result of the media stories. She was humiliated by the actions of the police in seeking the order without her knowledge or consent. This humiliation was compounded by the fact that others also knew that the order was sought without her knowledge. She said that the fact that she came from a small town, where news of this kind travels quickly, means that the matter continues to be referred to from time to time.

The defendant submitted that a magazine story published some three months later which featured the complainant and her boyfriend resulted in the complainant contributing to the publicity (and resulting humiliation) about the police action. The complainant indicated that she was forced, by her boyfriend, to participate in that magazine story and that it was not something she would have engaged in herself without that pressure. The reason her boyfriend wished to have the magazine story published was to counter any impressions given by the original media stories.

We think that the problem for the defendant in both seeking the protection order for the complainant without her knowledge or consent and then publicising the matter lies in the nature of the difficulty the complainant was in at the relevant time. She was in a violent relationship from which she was unable (for various reasons) to extricate herself. She was unable to assert herself appropriately and much of her decision making powers were unavailable to her. We understand this to be typical of those in violent relationships and that the description and analysis of those states of mind is usually couched in terms like empowerment and disempowerment. By seeking the order without her consent the sergeant was simply reinforcing the disempowered state from which the complainant was suffering at the relevant time. That was compounded by broadcasting the facts of the matter.

Given the nature of the relationship between the complainant and her boyfriend it is possible that she did not participate willingly in the magazine story. We are not prepared, for that reason, to discount the humiliation the complainant suffered by reference to that story.

We are satisfied that there is a significant humiliation or loss of dignity that arises under these circumstances - not only at the time of the broadcast, but subsequently each time an acquaintance asks the complainant if it was her for whom the police sought the protection order.

REMEDIES

Accordingly the following declarations and orders are made:

1. The actions of the defendant in disclosing personal information about the complainant resulted in an interference with her privacy in breach of the Privacy Act 1993.

2. The defendant is ordered to pay damages for the humiliation, loss of dignity and injury to feelings suffered by the complainant of $10,000.00. The defendant shall pay interest on this sum at the rate for the time being prescribed by or under s. 87 Judicature Act 1908 from the date which is four weeks after the date of this decision.

Costs Reserved

DATED at Wellington this 16th day of December 1999

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S C Bathgate Chairperson

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W A C Abbiss Member

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G P Searancke Member

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Decision No 37/99 - Proceedings Commissioner v Commissioner of Police