15 May 2018, 09:00

R v Alsford is an important privacy decision. The Supreme Court has clarified the law in relation to voluntary requests for personal information by law enforcement agencies, and affirms the obligations and responsibilities of both the law enforcement requester and the responding agency. The decision affirms the importance and policy of the Privacy Act 1993, and its relationship with other relevant statutes, including the production order regime in the Search and Surveillance Act 2012, the test for the admissibility of evidence under section 30 of the Evidence Act 2006 and the test for an unreasonable search under section 21 of the New Zealand Bill of Rights Act 1990.

The Privacy Commissioner’s transparency reporting trial revealed confusion in the private sector about the lawful basis for law enforcement requests for personal information. Alsford, a criminal pre-trial matter, presented an opportunity for judicial clarification and the Privacy Commissioner was granted leave to be heard on the privacy issue. The Court’s decision was released in March 2017, subject to non-publication orders that have now been lifted.

The Court considered whether a production order should have been used to obtain power consumption data from electricity providers in an investigation of suspected cannabis cultivation, and whether the power consumption data was obtained in breach of privacy principle 11(e)(i) of the Privacy Act.

The Police made requests to three electricity providers for power consumption data from the defendant’s properties. All three companies disclosed the information sought under privacy principle 11(e)(i) of the Privacy Act. This manner of obtaining the power consumption information and its use to support subsequent production order and search warrant applications to uncover evidence of offending was one of the grounds of appeal. 

The majority of the Supreme Court (4:1) affirms the Police’s ability, in the circumstances and in the absence of a production order, to ask for power consumption information in the form of monthly aggregated data, despite finding that one of the three requests did not provide sufficient information to justify the resulting disclosure. That particular disclosure was therefore not justified in terms of principle 11(e)(i) and, to that extent, there was a breach of the Privacy Act.

The decision also affirms that where the Police obtain information from service providers about customers on a voluntary basis, they must not infringe section 21 of the New Zealand Bill of Rights Act (the right to be secure against unreasonable search and seizure). 

The appeal involved assessing the inter-relationships between four different statutes:

1. The Privacy Act and the “maintenance of the law” disclosure exception (privacy principle 11(e)(i)) – what is the nature and scope of this exception and what are the
   respective obligations on the law enforcement requester and the responding service provider?
2. The Evidence Act - was the information obtained admissible under section 30 (even if there was a breach of the Privacy Act)? 
3. The Search and Surveillance Act – when should a production order be used to obtain personal information from service providers?  
4. The New Zealand Bill of Rights Act - was there a reasonable expectation of privacy in the information that made the disclosure a “search” under section 21, and if so, was it unreasonable?

The Alsford decision is significant in formulating an approach that reconciles the different statutes and clarifies the role of the Privacy Act. One of the fundamental  considerations is a proper characterisation of the maintenance of the law exception – it is not an empowering provision for law enforcement agencies to request information, but rather a disclosure provision enabling information holding agencies to respond to law enforcement requests in appropriate circumstances. 

Earlier judicial authority (predating the Search and Surveillance Act) held that limited disclosure for law enforcement purposes and the use of that information in seeking a search warrant came squarely within privacy principle 11(e)(i), in circumstances where section 21 of the New Zealand Bill of Rights Act had not been engaged. The Supreme Court majority decision affirms this position, and the limits on obtaining personal information by voluntary request if it would amount to a search.

Read the full commentary (opens to PDF, 861KB).