New Zealand Law Society - Privacy Act request and relationship to Family Courts Act considered

Privacy Act request and relationship to Family Courts Act considered

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The Office of the Privacy Commissioner has considered a complaint where Oranga Tamariki withheld and redacted documents relating to Family Court proceedings.

In a case note, the Commissioner says a mother whose three young children were taken into the care of Oranga Tamariki complained after information she requested was released with substantial redactions.

The Office notes that principle 6 of the Privacy Act 1993 states that personal information held by agencies about individuals can only be withheld if an appropriate Privacy Act withholding ground applied.

Among the four different grounds on which Oranga Tamariki had withheld information was section 7(2) of the Act, in reliance on section 11B of the Family Courts Act 1980, which says that a person may not, without the leave of the court, publish a report of proceedings that includes identifying information for anyone under 18 that is a subject of or party to proceedings.

The Office says Oranga Tamariki relied on this provision to withhold the documents that it held relating to the Family Court.

"We did not consider that Oranga Tamariki providing information requested under the Privacy Act would be a 'publication'," the case note says.

"The documents in question were not a 'report of the proceedings'. Therefore, we did not accept that section 11B of the Family Courts Act operated as an override to the Privacy Act."

The Office says Oranga Tamariki then released more information to the mother, including some documents relating to the Family Court.

"Other Family Court documents remained withheld. The High Court case Simes v Legal Services Commissioner [2017] NZHC 2331 found that certain reports and plans are commissioned by the Family Court on a confidential basis and only the Court can decide to waive the confidential status of the material.

"Having reviewed the material that was not released to the mother, we determined that information was in the custody and control of the Family Court, not OT. Courts and tribunals do not fall under the jurisdiction of the Privacy Act as they are not considered agencies."

The Office says it advised the complainant that if she wished to access the remaining information, she would need to make inquiries with the relevant court. It also advised that if she wished to take the matter further, she could take her case to the Human Rights Review Tribunal.