John Edwards writes on Fairfax’s Privacy whinge

Fairfax has rushed off to the Privacy Commissioner. Think for a minute how absolutely hilarious it is for a media organisation that plies its trade rummaging in the privacy of other people to now rush off to the Privacy Commissioner because someone allegedly abused their privacy. My sides are hurting from laughing at the irony of it all.

However what are their and Peter Dunne’s legal chances with all of this?

John Edwards suggests not much chance at all.

Without any power to compel the production of information, David Henry needed to rely on the cooperation of other parties.  In order to cooperate in the absence of any legal obligation to disclose, Ministers, Parliamentary Service and others needed some authority to hand over information to the inquiry.

If an agency that is subject to the Privacy Act voluntarily hands over personal information, they need to be satisfied that doing so is consistent with the purposes of collection, is authorised by the individual concerned, or is necessary for the maintenance of the law (or one or two other exceptions).

The Parliamentary Service held copies of emails, and of security card records of both Peter Dunne and Andrea Vance. All of that is personal information. But the Privacy Act does not apply to the Parliamentary Service (except in a limited sense, relating  personal information about employees). Therefore, however you feel about what they should have done, giving all the information to the inquiry, even emails, could not be a breach of the Privacy Act, so no remedy for Dunne/Vance. There might be  a Privileges Committee inquiry, changes to procedures, or even to Standing Orders, but in respect of the Parliamentary Service, no one gets to claim a cent.  

Any other options? Well, it seems that the Department of the Prime Minister and Cabinet (which is of course a department of state, meaning public servants, and quite different from the Prime Ministers Office, which is staffed by political appointees) provided secretariat services to the Henry inquiry.

In that capacity, they received details of emails and phone records from the Parliamentary Service, in order to pass on to the inquiry. DPMC is definitely an agency to which the Privacy Act applies, so if they received that personal information from Parliamentary Service, could they be liable?

Probably not. First thing, it seems they would have received that only on their capacity as supporting the inquiry, therefore passing the information on would have been the purpose for which the collected it, therefore not in breach of the Act. Then there is s.3(4) of the Privacy Act:

For the purposes of this Act, where an agency holds information—

(a)solely as agent; or

(b)for the sole purpose of safe custody; or

(c)for the sole purpose of processing the information on behalf of another agency,—

and does not use or disclose the information for its own purposes, the information shall be deemed to be held by the agency on whose behalf that information is so held or, as the case may be, is so processed.

Finally, if the emails were received by DPMC and/or the inquiry but not read or used, as has been claimed there would not have been (according to case law) a disclosure.  Disclosure needs someone to see it.

Did I say finally? Well no – here it is.  To bring a complaint under the Privacy Act, Peter Dunne and/or Andrea Vance would have to show that they had suffered some actual loss or damage, or significant injury to feelings, or significant loss of dignity or humiliation.  ON the facts available at the moment, they would fail because however righteous their current indignation, it is not caused by the disclosure or use of personal information.

The Privacy Act is not going to help.  Clearly the media and MPs and parliamentary officials  are going to want to ensure that clear boundaries are established delineating the legitimate use by the executive or its agents of parliamentary information, but the legal options for the parties here seem to me to be nil. The tort of privacy will not work, because there has not been a “public disclosure of private facts”.

This is primarily a political, rather than a legal matter, and does not engage legal remedies.  Constitutional issues, such as the relationship between the media and the Parliamentary Service, and between them and the Executive when inquiries of this nature obviously have legal issues at their core, and much should be learned from these events, but no one is going to win a lawsuit in this thing.

  • Yvette

    Yes – let’s apologise to and compensate Vance and Fairfax for any discomfort, inconvenience or infringement of their “rights’, over their receiving and publishing stolen sensitive material

    • Brendon Taylor

      This is the rather loud & indignant smoke screen or blanket, that is intended to hide their own legal missteps, but I think we all know that usually the people to make the most noise are those with the most to hide or lose.

  • Brendon Taylor

    This whole exercise is to assassinate the popularity of the PM, that is why the Greens & Labour are cuddling up to KDC & now in turn with the media (I wonder if any of them realise that this coalition of the unpopular will be disbanded as soon as one of them gets what they want) i.e. popularity death of the PM. Labour & the Greens are only held together by the arrogant view that they could do exactly the same things the govt is doing but better, this is all transparent to the public, & if it isn’t its because they don’t care.

  • LesleyNZ

    I think I heard Steven Joyce say this morning that media have made application to have confidential info about this saga released. Will they still do this and look like hypocrites?

  • IWantToBeLikeMallardOneDay

    John Edwards? Isn’t he that performing seal from America who loved the poor so much that he did it with the bag lady while his wife was dying of cancer?

  • steve and monique

    One question. Why is Dunne so worried about a couple of emails. Has he been doing a Weener( usa) and sending photos of his junk to Vance,or vise versa

    • Kendall

      Dam right he has. I want to know what chance vance suggested.

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