Request by non-custodial parent for child’s prize-giving result
Request by non-custodial parent for child’s prize-giving result—child requested results be withheld because of use made by parent of other information—meaning of ‘endanger the safety’ of a person—discussion of ‘necessary’ test—no grounds to withhold
This case involved a request by a non-custodial father of a secondary student for a written list of his child’s achievements, as announced at the annual school prize-giving. He was not able to attend the ceremony because a protection order in respect of his wife and children had been taken out against him.
The prize-giving list was not published at the time of the ceremony but it was known that it would be published in the school magazine the following year. Copies of the school magazines were available in the local library.
The requester’s child was adamant that the information at issue not be released because of the way in which the requester had previously used information which he had acquired about his children. It was claimed that this use had amounted to harassment and breach of privacy. The school Board of Trustees took cognisance of the student’s strong views and withheld the information in reliance upon sections 9(2)(a) and 6(d) of the OIA on grounds of protecting privacy and because of the likelihood of endangering the safety of any person.
The test implicit in section 6(d) is a high one. In other words, the phrase ‘endanger the safety’ of any person has generally been accepted as meaning there must be a substantial risk that a person’s life is likely to be put in peril or there is danger that their physical safety will be jeopardised, should the information at issue be released.
In this case, although it was suggested that the student’s psychological wellbeing may have been damaged, there was no evidence that the kind of harm envisaged by the section was likely to occur, should the prize-giving list be released by the school to the requester. Accordingly, section 6(d) did not apply.
In respect of the question as to whether section 9(2)(a) applied, several factors were found to be relevant. The first was the nature of the information itself. It was significant that the information had not been collected or supplied by the student or by any family member. It had been generated by the school. Moreover, the purpose of its generation was to make the information public, as it would seem there would be little point in the prize-giving process without the school publishing the identities of prize-winners.
A further relevant consideration was that the information had been made public to a certain extent, in that it had been announced at a ceremony attended by members of the public. It was also intended that the school would make the information available after a few months, when the prize-giving results were to be published in the school magazine, which, it was envisaged, would have a wide circulation. This suggested that withholding the information would only delay the seemingly inevitable receipt of it by the requester and not assuage his child’s key concerns.
In light of these factors and after consultation with the Privacy Commissioner, it was determined that it was not ‘necessary’, pursuant to section 9(2)(a), to withhold the information at issue to protect the privacy interests identified and therefore this section did not apply. Although the Board of Trustees was reluctant to act contrary to the student’s express wishes, it accepted and gave effect to the recommendation that the information at issue be released to the requester.
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.