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Case note 282483 [2019] NZPriv Cmr (2): Social service agency questions complainant’s harm

By   /  February 7, 2019  /  Comments Off on Case note 282483 [2019] NZPriv Cmr (2): Social service agency questions complainant’s harm

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Source: Privacy Commissioner

A social service agency that caused unnecessary delays in resolving a complaint left a woman feeling vulnerable and unimportant.

The woman first complained to us about the agency after it posted a letter to her work address containing personal information about the her and her family. The woman’s employer had a policy to open any mail it received addressed to its employees. After opening the letter, the employer shared the contents with her colleagues and they used it to bully the woman.

The social service agency knew about the employer’s policy of opening employee letters because it had made this mistake already; sending sensitive information about the same woman to the same address several years earlier

Our finding

After investigating the complaint, we found that the agency had breached principles 8 and 11 of the Privacy Act and caused the woman harm. This was an interference with the woman’s privacy. We considered it appropriate for the agency to make a settlement offer.

We asked the agency to respond within 10 working days.

Calling a compulsory conference

Three weeks later, the agency responded and told us that it accepted finding. It planned to contact the woman within a week to arrange a time to make a formal apology.

But six more weeks passed, and the agency still had not contacted the woman. We decided it was necessary to use the compulsory conference powers in section 76 of the Privacy Act These provisions require an agency to meet with the complainant to try and settle the complaint.

The agency responded with times and dates it could take part in a conference. We began to arrange for a suitable venue.

The question of harm

Three weeks after we called the conference, the agency raised some issues. It questioned its role in causing harm to the complainant. It argued that we had accepted the complainant’s word “with no apparent verification.”

This was a disappointing development. We would have expected the agency to raise these concerns when it first responded to our finding.

Evidence of harm

We explained that section 66 of the Privacy Act sets out the threshold for harm. The Privacy Commissioner determines whether the harm that has occurred meets that threshold.

The woman had told us that the incident had an ongoing impact on her life. Her manager and colleagues bullied her about the content of the letters. This caused her stress and undermined her ability to do her job.

The stress caused ongoing medical issues, which lead to financial pressure. The woman was afraid she would lose her job because of all the time she had to take off work. We considered medical evidence supporting these statements.

We also took the Human Rights Review Tribunal’s decision in Taylor v Orcon [2015] NZHRRT 15 into account. This case found that an agency only needs to be a contributing cause of harm, not the main cause.

In this case, colleagues used the incorrectly addressed letter to bully the complainant. We saw the agency sending the letter to the wrong address as a contributing cause of the complaint’s harm.

With that in mind, we believed that this case reached the threshold of significant humiliation, loss of dignity, and injury to feelings.

Despite this explanation, the agency still wanted to see further evidence of the woman’s harm. They wanted to ask her about it at the conference and were not willing to discuss any financial settlement.

Resolution

We expect all parties to attend compulsory conferences prepared to resolve matters. A dispute about harm could cause the complainant more unnecessary distress. We decided that it wasn’t appropriate to have a conference while the agency took this stance.

The woman answered a series of questions from the agency about her harm. She also agreed to show the agency medical evidence of her harm. It was only then that the agency offered an apology and financial compensation of $6,000.

The woman wasn’t satisfied with the amount offered but accepted it anyway. For her, the situation had already taken too long to resolve. It had been over a year since she complained to our office. She said that during that time, she felt vulnerable and unimportant because the agency didn’t believe her.

We acknowledge that agencies must be accountable for their funds, but in this case, we had repeatedly advised the social service agency that the woman was vulnerable and that delays in resolving this matter were making the harm she had experienced worse. Agencies need to keep this in mind and engage with us in a timely and meaningful way when working to resolve a complaint.

MIL OSI

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