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Paula Bennett’s release of the details of benefits paid to two women who criticised the Government’s axing of the tertiary study allowance is potentially a breach of both the Privacy Act 1993 and the privacy tort. Principle 11 of the Privacy Act 1993 provides that ‘an agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds’ that one of the exceptions set out in Principle 11 applies. There is no question that the Minister is an ‘agency’ for the purposes of the Act and that she has disclosed ‘personal information’. The question is therefore whether an exception applies. The Minister seems to be relying on the exception which applies when the ‘disclosure is authorised by the individual concerned’. It is questionable though whether a person who reveals that they are on a benefit and hoped to rely on a further study allowance can be said to have ‘authorised the disclosure’ of the exact details of all of the benefits that they are currently receiving and have received over the past few years. I would be surprised if the Privacy Commission (which would consider any Privacy Act complaint the women were to bring) were to accept that this was enough to satisfy the exception. Bennett’s conduct could also fall foul of the privacy tort. The women could claim a breach of privacy if they were able to show that they had a reasonable expectation of privacy in respect of information about their benefits and that the publicity which the Minister gave to them would be ‘highly offensive’ to a reasonable person. Both of these elements seem to be satisfied here. The Minister would have a defence if the women consented to the disclosure or if the disclosure was a matter of legitimate public concern. This means that the disposal of any tort claim would again turn on the extent to which the women could be said to have put the matter in the public domain by discussing their objection to the Government’s policy in the media. New Zealand courts have accepted that the fact that a claimant has ‘courted publicity’ can be a defence, as can a defendant’s interest in ‘putting the record straight’. However, neither of these defences give defendants a carte blanche to reveal whatever they like about the matter that the individual has raised. Instead, courts assess exactly what kinds of disclosures were justified in the circumstances. It is questionable whether revealing confidential financial information about the women was either necessary to ‘set the record straight’ or justified by the limited disclosures that the women had made themselves. When considering these defences, the courts would need to consider freedom of expression interests which weigh on both sides of the argument here. The law should protect the Minister’s right to respond to criticism yet it is important that she does not do so in a way which is so heavy handed that it would deter others from speaking out. There is an element of David and Goliath in this case that, in my view, which makes the women’s position rather more sympathetic. Nicole Moreham, Senior Lecturer

Comments

3 Response to 'Minister's disclosure of benefit information'

  1. Unknown
    http://55lambtonquay.blogspot.com/2009/07/ministers-disclosure-of-benefit.html?showComment=1248844075655#c96834803600868452'> July 28, 2009 at 10:07 PM

    Is there not another important point in all this – why does the Minister even have the information on what the Ministry pays/has paid to the 2 women involved? It is none of her business and is not required by her to do her job and therefore she should not have access to it. If I choose to engage in a policy dialogue with the Minister of Revenue, I would not expect that to give him the right to access my tax file. Surely the same holds here.

     

  2. SandraJ
    http://55lambtonquay.blogspot.com/2009/07/ministers-disclosure-of-benefit.html?showComment=1248873763116#c3009202454903284170'> July 29, 2009 at 6:22 AM

    Indeed Jonathan, did the Department have to disclose the information to the Minister anyway? Surely Ministers can't trawl through Departmental information willy nilly? Did the Department alert the Minister to the Privacy Act implications when they gave her the information? And is this any defence anyway if the Department thought they would be in breach of the Privacy Act?

     

  3. Swimming
    http://55lambtonquay.blogspot.com/2009/07/ministers-disclosure-of-benefit.html?showComment=1249001238259#c741924910633868204'> July 30, 2009 at 5:47 PM

    It is my understanding that the department didnt have a role in the disclosure. It was done from the Ministers office without the department's prior knowledge.

     

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