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Privacy complaint considers effect of Criminal Disclosure Act

27 January 2020

The Office of the Privacy Commissioner has considered whether the Criminal Disclosure Act 2008 overrode the Privacy Act 1993 in disclosure of information to the lawyers of two men accused of killing the son of a couple.

The Office has released a case note on its resolution of a complaint made by a woman who said Police had put her safety and that of her husband at risk by giving documents to the lawyers for the two accused as part of the criminal disclosure process authorised under the Criminal Disclosure Act.

The woman said the material had included the couple’s full names, their relationship to their son and their places of work. She and her husband felt “an overwhelming sense of exposure” because the two accused now knew their names and where they worked.

The case note says that under principle 11 of the Privacy Act, an agency that holds personal information must not disclose the information unless it believes on reasonable grounds that one of the exceptions to that principle applies.

"The main legal questions were whether Police had breached principle 11 of the Privacy Act by disclosing information, and if the CDA overrode the Privacy Act in this instance."

After being contacted, the Police said section 12(2)(e) of the Criminal Disclosure Act overrode principle 11.

"The information disclosed was on a Police job sheet. However, it was our understanding Police had not received a request in writing when it was provided to the defendants’ lawyers. Because the information had not been requested in writing, we did not accept that the CDA overrode the Privacy Act in this instance," the Office says

"Our preliminary view was that Police had breached principle 11. We were also satisfied this disclosure had caused the woman and her husband harm."

Police correct assumption

However, the Office says Police responded to correct its understanding that there had been no requests in writing for the information.

"The defendants’ lawyers had, in fact, made requests in writing, prior to the disclosure being made. One of the lawyers had specifically referred to section 12(2) of the CDA, while the other request referred to wanting general disclosure for the client.

"Police also questioned our view that the CDA would only have prevailed over the Privacy Act had a request been made in writing."

The case note says Police submitted they had not breached principle 11 because the disclosure provisions of the Criminal Disclosure Act applied and prevailed over the Privacy Act.

"Unlike witnesses’ residential addresses, the CDA does not require Police to redact information about a witness’ workplace. Whether that information is redacted from a document provided under the CDA is therefore a matter of discretion (refer to ss 16 and 17 of CDA)."

Police had not interfered with privacy

The Office says after careful reconsideration it reached a final view that the Police had not interfered with the woman's privacy.

"We reviewed our analysis and concluded that, in the circumstances, s12(2)(e) of the CDA applied and overrode principle 11 of the Privacy Act.

"We observed:

  • Where the CDA was silent about whether a particular document or particular information had to be supplied, we were able to consider whether the information was relevant.
  • However, in this case, the document that contained the information about the woman’s workplace was a Police job sheet that contained relevant information. That document had to be provided if a written request was made after criminal proceedings commenced.
  • Police had raised an argument that proactive disclosures should also be governed by the same override provision. While we had doubts about whether proactive CDA disclosures would prevail over the Privacy Act, it was not necessary to decide in this particular case and we reserved our opinion for a case when it would be relevant.

"The disclosure had evidently caused the woman significant distress. We noted that releasing workplace details could create an avenue for contact with a witness, and more care would have been desirable before releasing the information."

The Office  decided there had not been an interference with the woman’s privacy in this instance. It informed her of her right to take the matter before the Human Rights Review Tribunal if she disagreed with its final view.

Last updated on the 27th January 2020