Posted on: Dec 05, 2016
When employment relationships start to go pear shaped, employers are often faced with very generalised Privacy Act requests, which can be difficult and time consuming to comply with. We refer to such requests as a ‘fishing expedition’, whereby an individual makes a formal information privacy request for all information about themselves pursuant to Principle 6 of the Privacy Act 1993.
Such generalised requests can include information far beyond what you may think – the obvious information being wage and time records, or personnel files. However, it can actually include all documents and written information that relate to the individual in any way, all emails which were sent to/by or that relate to the individual, notes kept by managers or other staff, and even information about that individual which is contained in the minds of managers or other employees. To obtain this information you may even need to interview staff to find out what information is in their minds about that individual! It sounds ridiculous, but that’s the extent that some information privacy requests go to, hence our reference to a fishing expedition earlier.
Thankfully, section 35 of the Privacy Act allows for a private sector agency (eg employer) to be able to charge for complying with such requests. The rationale for the right of private sector agencies to impose reasonable charges for making this information available was expressed by the Hon H Hancock, of the Justice and Law Reform Committee, as follows:
Agencies, businesses, and private organisations need to be protected against people who make excessive or vexatious demands on them. Having the power to charge for giving access to information is a protection that I believe those organisations will welcome ((1993) 71 NZPD 1413).
Public sector agencies may not impose a charge for an information privacy request. The reason for the distinction here is that public sector agencies are expected to bear all the cost of complying with the legislation, whereas private sector agencies should be able to recoup some of the cost.
Having the ability to charge the individual puts some power back into the hands of the employer, and helps to have such requests limited to specific pieces of information that the individual seeks to obtain. It can therefore be a useful tool or tactic to use if the employer is faced with an excessive request.
What can an agency/employer charge for?
A private sector agency may only charge for costs involved with making information available. This excludes time taken to identify and understand what information may fall within the request’s terms or deciding on what of information should be released.
What is a ‘reasonable’ charge?
The Privacy Act does not state what a ‘reasonable’ charge is, however guidance can be taken from the Ministry of Justice, Charging Guidelines for Official Information Act 1982 Requests (March 2002), which specifies:
- The first hour of labour should be free.
- An agency may charge $38 for every half hour.
- The first 20 pages of photocopying is free.
- An agency can charge 20c per page after that.
If you get lumped with catch-all information privacy request, contact us and we can assist you by utilising this section of the Act. Once notified of potential charges amounting to $3,000 – $5,000, many individuals will quickly narrow the scope of their requests, greatly alleviating the administrative nightmare it would have otherwise been.
For more information see the Privacy Commissioner website.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.