Privacy Commissioner - Te Mana Matapono Matatapu

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Maintaining the law

It's important for all of us that the Police, and other agencies that maintain the law, can investigate and prevent crime and other offences.

Sometimes, there's a real risk that releasing information to a requester could get in the way of investigating and detecting offences. Releasing information at an inappropriate stage can also impede a fair trial.

Agencies should release as much information as they can without prejudicing their ability to maintain the law. For example, releasing a summary of information can be a good way to give a requester as much information as possible, while not revealing crime investigation techniques.

• Who can withhold information under this section?
• Can I find out who gave information against me?
• What if an informant provided false information in order to get me into trouble?
• I have been told I am being investigated for an offence.  Can I get a copy of my file from the agency investigating me?
• Are there types of information that an agency can always withhold?

Who can withhold information under this section?
Usually, the agencies that have criminal law enforcement functions, such as:
• the Police;
• Child Youth and Families Service (CYF) regarding child protection; and
• Work and Income regarding benefit fraud.

Those agencies sometimes rely on receiving information from others. If another person or agency is acting as a channel for information to a law enforcement agency, that person or agency may also be able to withhold information under this section. This ensures that those channels of information are kept open.

For example suppose that someone tells a doctor that a person has been abusing a child, and that doctor sends the information to CYF so it can investigate the allegation. The person who is suspected of abuse might ask CYF who made the allegation. CYF can refuse to tell them under this section. If the person approached the doctor, the doctor can equally refuse under this section, since the doctor was just acting as a channel of information to CYF. It would make no sense for CYF to be able to refuse, but for the doctor to have to release the information [Case Note 12846].

See also Case Note 2438, where a school acted as a channel of information to the Police about student drug dealing. People could report suspicions to the school, which then passed them on.

Another example is an insurance company that could withhold the identity of informants who had contacted it alleging that a fire had been started deliberately [Case Note 17375].

Can I find out who gave information against me?
Not usually. Agencies can almost always withhold information that could identify people who make complaints or provide information (‘informants').

This is because agencies with law enforcement functions rely heavily on receiving information from members of the public. If these members of the public thought that their identity would be released to the person they were providing information about then they would be less likely to provide it. So the agencies would not get information they need, and would not be able to investigate possible offences.

There may be rare circumstances where releasing someone's identity will not deter others from providing information in the future.

If people have to give information about others as part of their job - for instance in certain parts of the public service - then they usually cannot remain anonymous unless there's a risk to their safety.


What if an informant provided false information in order to get me into trouble?
It is still likely that the agency will be able to withhold the identity of the informant. Revealing the identity of a malicious informant may still create a substantial risk that genuine or well-meaning informants may be put off supplying information in other cases.

The agency's investigation processes should be robust enough to deal with malicious information. For instance, agencies need to take reasonable steps to check that information is accurate before they use it (principle 8). And if the agency is sure that the informant acted maliciously, it may well take steps to note this on its records to reduce the chance that the person can cause trouble in the future (principle 7). Also, it may take further steps - deliberately supplying false information can sometimes be a criminal offence.

See for instance Case Note 92046; Nicholl v Department of Work and Income, High Court Rotorua, AP 255/01, 6 June 2003, Judgment of Rodney Hansen J (download below). 

I have been told I am being investigated for an offence. Can I get a copy of my file from the agency investigating me?
If an agency is investigating an offence, releasing information can sometimes get in the way of the investigation. For instance, witnesses may be influenced to change their story, investigation techniques could be revealed, or evidence could be destroyed. So sometimes the agency can refuse to release some information about the investigation until that investigation has finished.

Of course, it can be very important that the person being investigated has a right to have their say. At the appropriate stage, therefore, the person will need to know enough for them to be able to state their own views. However, this does not always entail having access to all the information from the investigation. A summary of the allegations and supporting information may be sufficient.

Once the investigation has finished, the person who was investigated can ask again to see information from the file. At that stage, they should be able to see most of the information about them. Releasing the information at that stage is far less likely to prejudice the agency's ability to maintain the law. The agency can only withhold information that might prejudice future investigations (such as investigative methods or informant details).

Are there types of information that an agency can always withhold?
There are some types of information that agencies that maintain the law can usually withhold. These include informant identities and investigative methods.

However, even with these types of information, the agency needs to look at the individual circumstances to see if there is in fact a risk of prejudice to the maintenance of the law. Sometimes there may not be a risk.

See DHRP v Police [2007] HRRT 34/05 (Decision # 22/07) - download below.

The agency should in any case aim to give the person as much information as possible - for example it might provide documents with some deletions, or might give the person a summary.

For instance, in Case Note 99971, an agency gave a man a summary of the allegations against him.  Providing a summary still allowed the agency in this case to protect the identity of its informants while allowing the man to see what he was accused of.


References:

Privacy Act 1993
Section 27(1)
An agency may refuse to disclose any information requested pursuant to principle 6 if the disclosure of the information would be likely -

(c) to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial

HRRT/Court cases: