This summary of legislation relating to information privacy issues has been prepared by Prima Solutions to provide a general overview of the legal obligations in New Zealand. Our summary is based on our view of the key elements and involves some interpretation on our part. Therefore, this summary should be used for general information only. Please refer to the legislation and, if appropriate, seek independent legal advice to gain a full understanding of your legal obligations.
Official Information Act 1982
The purposes of this Act are to:
- increase the availability of official information to the people of New Zealand
- provide for proper access by each person to official information relating to that person
- protect official information to the extent consistent with the public interest and the preservation of personal privacy
Principle of Availability – This is an overarching principle which requires that information is made available unless there is good reason for withholding it.
Reasons for withholding official information - there are numerous clauses specifying reasons for withholding information.
There will often be a tension between:
- considerations favouring disclosure of information; and
- considerations favouring withholding information
Considerations favouring withholding can be summarised as:
- reasons relating to the administrative difficulty in complying with a request
- reasons based on the harm that may be caused by disclosure of the information
Information about a person can only be withheld if withholding is necessary to protect the privacy of that person, AND, protecting their privacy is not outweighed by public interest considerations in favour of making the information available.
Decisions on requests - the person seeking information must be notified within 20 working days of the decision (whether or not to provide the information). If a request is denied the reason must be given.
Extension of time limits - there are some provisions for extension of time limits.
Deletion of information from documents - where there is good reason for withholding some of the information contained in a document, deletions or alterations can be made to withhold that information. The reason for deleting information must be given to the person seeking the information (this is typically done by quoting the relevant clause of the Act.)
Local Government Official Information and Meetings Act 1987
The purposes of this Act are:
- to provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities.
- to provide for proper access by each person to official information relating to that person:
- to protect official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.
The specifics of the Act are very similar to those of the OIA with some additional sections relating specifically to local government functions such as local authority meetings and issuing of Land Information Memoranda (LIMs).
Privacy Act 1993
The Privacy Act (1993) protects individual privacy. It states that personal information must not be collected by any agency unless the information is collected for a lawful purpose connected with a function or activity of the agency; and the collection of the information is necessary for that purpose.
Where an agency collects personal information, the agency must generally collect the information directly from the individual concerned, unless the information is publicly available.
An agency that holds personal information must ensure that the information is protected, by such security safeguards as it is reasonable in the circumstances to take, against:
- loss; and
- access, use, modification, or disclosure, except with the authority of the agency that holds the information; and
- other misuse.....
If it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency must be done to prevent unauthorised use or unauthorised disclosure of the information.
An agency that holds personal information must not keep that information for longer than is required for the purposes for which the information may lawfully be used.
Where an agency collects personal information directly from the individual concerned, the agency must take reasonable steps to ensure that the individual concerned is aware of:
- the fact that the information is being collected
- the purpose for which the information is being collected
- the intended recipients of the information; and ....
Privacy officers - every agency must have one or more individuals whose responsibilities include:
- encouraging compliance, by the agency, with the information privacy principles
- dealing with requests made to the agency under the Act
- working with the Privacy Commissioner in relation to investigations relating to the agency
- otherwise ensuring compliance by the agency with the provisions of the Act
The Privacy Commissioner may from time to time issue a code of practice which may modify one or more of the principles in the Act or provide guidance on application of the Act. The Health Information Privacy Code is one of these codes of practice.
Public Records Act 2005
Public Records Act (2005) The Act covers a person or body owned or controlled, directly or indirectly, by the Crown. The purposes of this Act are:
- to provide for the continuation of the repository of public archives by Archives New Zealand
- to provide for the role of the Cheif Archivist in developing and supporting government record-keeping, including making independent determinations on the disposal of public records and certain local authority archives
- to enable the Government to be held accountable by:
- ensuring that full and accurate records of the affairs of central and local government are created and maintained
- providing for the preservation of, and public access to, records of long-term value
- to enhance public confidence in the integrity of public records and local authority records
- to provide an appropriate framework within which public offices and local authorities create and maintain public records and local authority records…
- through the systematic creation and preservation of public archives and local authority archives, to enhance the accessibility of records that are relevant to the historical and cultural heritage of New Zealand and to New Zealanders’ sense of their national identity
- to encourage the spirit of partnership and goodwill envisaged by the Treaty of Waitangi (Te Tiriti o Waitangi)
- to support the safekeeping of private records
Every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor.
Every public office and Local Authority must maintain in an accessible form, so as to be able to be used for subsequent reference, all public records that are in its control, until their disposal is authorised by or under this Act or required by or under another Act.
As soon as is reasonably practicable after five years from the commencement of the Act, an independent audit of record-keeping practices must be carried out in every public office.