Posted on: Aug 01, 2016
The Privacy Act gives people the right to see personal information that agencies hold about them. While this might appear straightforward, there are a number of circumstances where people and agencies disagree about what personal information the agency needs to disclose and what it can withhold.
This was exemplified in a recent complaint to the Privacy Commissioner office.
A medical doctor applied to a specialist college for a place in a limited-entry training programme. The application required him to submit a CV and a number of professional references.
The college used a points-based system to determine who would be offered an interview. Certain aspects of each candidate’s CV were assigned different points, as were each referee’s responses.
The complainant was not offered an interview. He chose to appeal this decision. In order to build his case, he requested all the information that the college held about him – including a breakdown of how many points he received and where they came from.
The college gave him a points breakdown for his CV, but withheld information about his referees. At this point he made a complaint to the Privacy Commissioner with a specific request for a full breakdown of his scores for the referee component of his application. He also wanted to know how the referee scores related to the final score.
The college’s withholding grounds
The college withheld the information based on two parts of the Privacy Act: section 29(1)(a) and 29(1)(b). These are both withholding grounds, or reasons, that agencies can use to justify not giving personal information to a requester. The relevant part of section 29 reads:
29 Other reasons for refusal of requests
An agency may refuse to disclose any information requested pursuant to principle 6 if –
(a) the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual or of a deceased individual; or
(b) the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise –
(i) which was made to the person who supplied the information; and
(ii) which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence
This section of the Act means that agencies do not have to disclose personal information when doing so would reveal what somebody else said about the individual for evaluative purposes.
The college argued that not only did the referees’ names and their responses meet these criteria, but the point value assigned to each reference also met this criteria, and they were therefore entitled to withhold it.
A look at the case law
The Human Rights Review Tribunal provided guidance on this issue in a decision from 2015 (Director of Human Rights Proceedings vs New Zealand Institute of Chartered Accountants). In this decision, an accountant made a Privacy Act request for comments made by peer reviewers in a review of his practice. The defendant refused this access because it was evaluative material. The plaintiff disagreed, but the HRRT upheld the refusal.
Point values but no wording
In the HRRT case, the plaintiff received anonymous, summarised commentary but did not receive the specific wording of each peer reviewer’s feedback. The Privacy Commissioner applied this reasoning to the medical college, and agreed that the college could withhold the specific wording from the actual references.
However, the Privacy Commissioner did not agree that they could withhold the point values. The point values were a number representing the overall value of each referee’s response; they did not identify the referee or give details about what he or she said.
The Privacy Commissioner advised the college that it did not consider this information to be subject to the withholding ground, and they released it to the complainant.
The complainant now had the information that he was entitled to under the Privacy Act, and the file was closed.
Source: Privacy Commissioner, Case note 274816  NZ PrivCmr 11
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