Offender’s request for victim’s medical examination
Section 9(2)(a) OIA applied—withholding necessary to protect highly sensitive personal information about the victim of sexual offending—no public interest override
A person convicted of rape complained to the Ombudsman when their request for the victim’s medical examination was refused by the New Zealand Police under section 9(2)(a) of the Official Information Act (OIA).
Section 9(2)(a) provides good reason for withholding (subject to a public interest) where it is necessary to protect the privacy of natural persons.
The Ombudsman said details of a medical examination performed on a victim of sexual offending is highly sensitive personal information. It was clearly necessary to withhold that information in order to protect the victim’s privacy.
The Ombudsman acknowledged ‘a public interest in the person accused of an offence having access to information held by the prosecution which is relevant to any charges against the accused’. This interest is usually safeguarded by the rules of criminal disclosure that apply to criminal court proceedings and which help ensure that the accused person receives a fair trial.
In this case, the requester sought access to the information after his conviction because he believed he may have been led to plead guilty to a charge of rape on the basis of incorrect legal advice.
The Ombudsman also accepted that ‘there is a public interest in someone being able to have such issues reviewed on their behalf to help ensure against miscarriages of justice’. However, this interest could be met by the requester exercising his right to engage a lawyer, who might seek conditional access to the records for a specific purpose.
The Ombudsman concluded that there was no public interest in provision of the records directly to the offender sufficient to outweigh the need to withhold the information in order to protect the victim’s privacy.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.