Office of Privacy Commissioner not unreasonable to decline to investigate complaint against Police

Office of the Privacy Commissioner (OPC)—decision not to investigate a complaint against the New Zealand Police

In the first instance, it is important to note that an Ombudsman has no authority to consider complaints under the Privacy Act. This means that, although an Ombudsman can investigate the OPC’s decision not to investigate the complaint, the Ombudsman cannot investigate the merits of the original concerns about Police.

Upon receipt of the complaint, the Ombudsman made preliminary inquiries to the OPC which explained that an investigation was conducted into a previous complaint made about Police concerning a request for identification. The OPC considered that the various options offered to the complainant by Police to effect identification were reasonable and OPC closed the complaint with a finding that there was no interference with the complainant’s privacy.

The OPC explained that Police need to adopt procedures in accordance with s45 of the Privacy Act to ensure they are satisfied with a person’s identity before releasing personal information.

Specifically, section 45 of the Privacy Act provides that:

Where an information privacy request is made pursuant to subclause (1)(b) of principle 6, the agency—

(a) shall not give access to that information unless it is satisfied concerning the identity of the individual making the request; and

(b) shall ensure, by the adoption of appropriate procedures, that any information intended for an individual is received—

(i) only by that individual;

The OPC further explained that it considered the procedures adopted by Police in this case to have been reasonable and not particularly onerous.

Given the options that were available to the complainant to confirm his identity with Police, and OPC does not consider these options to be unreasonable, the Ombudsman concluded that it was difficult to see how this Office could criticise the decision of the OPC in the circumstances. Having reviewed the correspondence that the complainant sent to and received from OPC in relation to this matter, it appeared to the Ombudsman that OPC conscientiously considered the concerns and responded accordingly.

The Ombudsman concluded that the decision not to investigate the complainant’s complaint was one that was reasonably open to OPC to make. The complainant did not respond to the Ombudsman’s preliminary opinion which was subsequently finalised.

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.