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Source: Privacy Commissioner

A person (A) complained to our Office after Police refused to provide them with notes and comments about themselves made by their former partner (B).

The comments and notes A wanted to access related to an interview B had with Police when A applied for renewal of a gun licence. Police interviewed B as A and B were in a domestic relationship at the time of the application.

A now wanted to access the comments for use in a Family Court proceeding with B.  B had raised criminal allegations against A in the course of that proceeding.

Police refused to provide the information to A out of concern that disclosing the former partner’s opinions would breach the Privacy Act.

The Privacy Act

This complaint raised issues under principle 6 of the Privacy Act. Principle 6 gives people the right to request access to their own personal information held by an agency. This is not an absolute right and is subject to the withholding grounds in part 4 of the Act.

Police put forward three grounds for withholding the information from A:

  • Section 49(1)(a)(iii) of the Privacy Act – sharing the information would cause significant distress, loss of dignity, or injury to the feelings of a victim of an offence or alleged offence.
  • Section 53(b)(i) of the Privacy Act – sharing the comments would be an unwarranted disclosure of the former partner’s information.
  • Section 53(c)(i) of the Privacy Act – sharing the information would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, or the right to a fair trial.

Our investigation

Police provided details outlining the potential harm facing the former partner B if the information was released to A.

In this case, the former couple were involved in a Family Court matter where criminal allegations had been raised against the complainant.

Section 49(1)(a)(iii) is a new withholding ground under the Privacy Act 2020. Section 49(1)(a)(iii) was included in the in the 2020 Act to address the Law Commission’s concerns about offenders being able to obtain information about victims, particularly in sexual offence cases. Providing this kind of information could revictimise crime victims and also be used as currency in the prison environment.

In this case, Police consulted with B and were able to describe the effect that the release of the information in question would have on them. On this basis, we were satisfied section 49(1)(a)(iii) applied.

Police also considered the information about A was also about B as it included their opinion of A, and section 53(b)(i) applied.

The application of section 53(b)(i) requires the balancing of a person’s right to access personal information with the privacy rights of others identified in the information. Given the circumstances, we were satisfied the information should not be shared.

While B had initially been supportive of A’s application for a gun licence, their relationship had changed since the time of the interview. We considered B’s privacy interest outweighed A’s right to access the information in this case.

Lastly, we were also satisfied that section 53(c)(i) applied because of the expectation of confidentiality when participating in a Police interview. This section provides a reason for refusal if making the information available would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial.

This aligned with a previous decision[1] where it was considered people could be reluctant to give information to Police if that information could later be shared.