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.