Report by psychologist acting as independent contractor—contents of report related to requester and third party—balance to be struck between right of requester to personal information and privacy interests of third party—provision of summary of personal information in the report
This investigation and review was directed at whether or not the Accident Compensation Corporation had relied reasonably upon section 27(1)(b) of the OIA in withholding from the requester information which it held about him. The information at issue was a report prepared for the Corporation by a psychologist in respect of a claim made for compensation for sexual abuse. The psychologist had acted as an independent contractor to the Corporation. By virtue of section 2(5) of the OIA, information held by an independent contractor is deemed to be held by the Corporation. Accordingly, any other personal information held by the psychologist about the requester in relation to the claim fell within the scope of the request. The information in the psychologist’s report, and some handwritten notes taken by the psychologist during interviews with the claimant, referred both to the requester and to the claimant.
The Chief Ombudsman was satisfied that section 27(1)(b) applied to the information at issue having regard to the intimate and personal nature of it; the overall context in which it was generated, including the claimant’s emotional state at the time; and the fact that the claimant had not received a copy of the report. The Chief Ombudsman was very conscious of the need to protect the personal privacy of victims of sexual and physical abuse in relation to information supplied by them to medical and social work professionals.
However, the Chief Ombudsman also considered the legally enforceable rights of the requester in terms of section 24 of the OIA to access personal information and his right in terms of section 26 of the OIA to correct information held about him that was inaccurate or incomplete and gave a misleading impression.
In this case, the Corporation had received and accepted a claim for personal injury by accident, the definition of which includes sexual abuse. The information at issue contained allegations that the requester had physically abused the claimant, her mother and her brother and that he had sexually abused her by indecent assault. These were extremely serious allegations which had not been disclosed to the requester.
In balancing the competing interests of the requester and of the claimant, the Chief Ombudsman noted that some weight had to be given to the fact that in accepting the claim the Corporation had, in a sense, determined that the requester was guilty of a criminal offence without the requester having had an opportunity to defend himself in Court. That had to be offset against the weight which has to be given in these situations to the position of the victim. The Chief Ombudsman therefore suggested to the Corporation that it ought to provide the requester with a summary of the allegations made against the requester together with the factual basis for them as derived from the psychologist’s report and notes. In the Chief Ombudsman’s opinion, the balance of the information was correctly withheld. The Corporation agreed with this view.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.