M v Commissioner of Police [2018] NZHC 615 (9 April 2018)

Last Updated: 1 May 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000386 [2018] NZHC 615

BETWEEN	M Plaintiff
AND	THE COMMISSIONER OF POLICE Defendant

Hearing:	7 February 2017
Appearances:	P J Shamy for the Plaintiff V McCall for the Defendant
Judgment:	9 April 2018

JUDGMENT OF DUNNINGHAM J

Introduction

[1] This case concerns the operation of the New Zealand Police Vetting Service. As was noted in a recent review of the Vetting Service, it is “perhaps not widely understood that the vetting process involves more than simply notifying of the presence or absence of a criminal conviction”.¹ The Police will sometimes have information that does not relate to criminal offending, or which has not been tested by the Court or otherwise independently verified, and this material can be very prejudicial to the individual concerned. When responding to a vetting request, difficult issues can arise in balancing the need to protect vulnerable members of society against the privacy interests of the individual being vetted.

1. The Police Vetting Service: A joint review by the Independent Police Conduct Authority and the Officer of the Privacy Commissioner (October 2016) (Joint Review) at [2].

M v THE COMMISSIONER OF POLICE [2018] NZHC 615 [9 April 2018]

[2] That is precisely the issue that has arisen in this case. The Vetting Service decided to release prejudicial information about the plaintiff to the New Zealand Fire Service. As a result, the Fire Service declined the plaintiff’s application to join that organisation as a volunteer. The plaintiff now challenges the Vetting Service’s decision to release that information. He says the decision was unlawful, unreasonable, and did not comply with the principles of natural justice. He seeks declarations to that effect and a declaration that, in the future, the information is only to be used for Police investigative purposes and may not be disclosed to third parties.

[3] The issues for determination are:

(a) whether the decision to release information about allegations made against the plaintiff to the Fire Service in the circumstances that arose was erroneous in any of the ways alleged by the plaintiff, and

(b) if so, what declaratory relief, if any, should be granted?

Factual background

[4] In November 2013, the Police received a complaint of indecent assault in relation to the plaintiff. The complainant was a female cousin of the plaintiff (complainant A), who was then aged 16, but who claimed the assaults took place when she was much younger. The matter was assigned to the Child Protection Team but, initially, complainant A did not wish to be evidentially interviewed.

[5] In early February 2014, complainant A’s mother informed the Police that her other daughter, complainant B, then aged 13, also disclosed being assaulted by the plaintiff when she was six or seven years old. Both complainants were evidentially interviewed in the following month.

[6] Complainant A’s allegations were that the plaintiff sexually assaulted complainant A in 2005 when she was seven to eight years old and he was 11-12 years old by touching her in the vaginal area on five occasions. Complainant B alleged that when the plaintiff was 14 years old and she was six or seven years old, he touched her
once in the vaginal area. Some of the touching was alleged to have occurred in the context of playing “doctors and nurses”.

[7] Arrangements were then made to interview the plaintiff and he was interviewed on 1 May 2014 in the presence of his lawyer. He denied all allegations made by the complainants.

[8] On 16 June 2014, the complainants’ mother informed the Police that her daughters did not want the plaintiff to be charged in relation to the allegations. While they initially wanted the plaintiff to be warned, the Police advised that they could not warn him because he had not admitted any involvement in the alleged incidents.

[9] Detective Belinda Campbell, the officer in charge of the investigation, sent a letter to the plaintiff on 17 June 2014 which stated that the Police “were satisfied having considered all the evidence that the information [was] accurate” but that the matter would not proceed to a prosecution, although that could be reconsidered if any further offending occurred. It said a copy of the letter would be placed on the Police file.

[10] On 9 June 2014, after the plaintiff had been interviewed by the Police in relation to the indecent assault allegations, but before he knew that the investigation would not proceed to a prosecution, he signed a consent form authorising the Police to disclose information about him to the Fire Service. He wanted to join the Service as a volunteer. Around the same time he also signed a consent form authorising the Police to disclose information about him to the Open Home Foundation, which runs a network of foster homes, because the owners of the rural property where he was living and working were proposing to foster children.

[11] In those forms he provided his consent to disclosure to both organisations:

... of ANY information that may be held by Police, including any interaction I have had with Police in any context or any information received by Police. I understand that this is not limited to conviction information.

[12] The Police had received both applications by 11 June 2014 at which point they began checking their databases to see what information was held about him. These
searches revealed that the plaintiff had a driving related conviction. They also revealed the live investigation of the plaintiff in relation to the allegations of indecent assault. Given the nature of the allegations involved in the investigation, a decision was made to refer the vetting requests to the Vetting Review Panel (the Panel).

[13] The Panel that first considered the vetting requests comprised four senior people from within the New Zealand Police Service. They were Superintendent David Trappitt, National Manager: Communication Centres; a Senior Adviser from Legal Services; the National Operations Manager: Community Centres; and the National Manager: Criminal Investigations. Also present was a Team Leader in the Vetting Service, Ms Shapelle McKenzie, who had had discussions with the officer in charge of the investigation, Detective Campbell.

[14] The Panel had available to it the record of the alleged offending which was held on the Police’s national intelligence application (NIA) database. That database holds records about offences and incidents reported to the Police as well as intelligence notings. They also had available an email exchange between Ms McKenzie and Detective Campbell relating to the vetting applications of the plaintiff. The email exchange followed on from a telephone discussion between Ms McKenzie and the Detective, and it sought clarification and further information relating to the allegations which was not available from the NIA record.

[15] The Panel considered the two vetting requests relating to the plaintiff when it met on 24 June 2014. Superintendent Trappitt deposed that at that meeting the Panel discussed both whether the information was relevant to the positions being applied for and whether it could be substantiated. He explained that although the plaintiff denied the allegations, the Panel considered the alleged indecent assaults were “sufficiently substantiated, and had probably occurred”. This was because:

(a) There was more than one complainant and no suggestion of collusion. They both independently provided a high level of detail when interviewed by Police. There was also “visible effect” of the alleged offending on both children prior to their disclosures because they had required counselling and medication.
(b) The officer in charge of the investigation would have charged the plaintiff except the complainants did not want to go to Court.

(c) The plaintiff’s father acknowledged it was possible for the offending to have occurred and had sought counselling for the plaintiff.

(d) The officer in charge of the investigation was concerned about the potential for further offending by the plaintiff.

[16] In terms of the relevance of the information, the Panel considered the information was significantly more relevant to the Open Home Foundation request where the plaintiff would be living in a foster home as a boarder/flatmate. However, the Panel considered that firefighters were “likely to have access to children, particularly in emergency circumstances that could increase their vulnerability”. Thus, while the Panel acknowledged there was a “very different level of risk” between the two roles, and the information was less relevant to the Fire Service:

... it may be best to give them the information and leave the decision to them. Due to the level of detail, the panel is satisfied that the incidents probably occurred, but the applicant was a youth and the allegations are relatively low level offending. He is an adult now, with no further known offending of this nature.

[17] Proposed wording for the disclosure was then drafted and circulated to Panel members. The draft the Panel proposed to release to the Fire Service read:

2013: Police received a complaint that when the applicant was aged 11-12 he allegedly indecently assaulted a girl aged 7-8 and when the applicant was aged 14-15 he allegedly assaulted a girl aged 6-7.

The applicant was interviewed in May 2014 and denied all allegations. Police considered that there was insufficient evidence to proceed to a prosecution.

[18] The Panel met again on 30 July 2014 to discuss the wording of the disclosure, (although it had a different representative from Criminal Investigations attending). The Panel again discussed the wording of the written note to go to both requesting agencies. It decided to change the statement that there was “insufficient evidence” to proceed with a prosecution, to say that there was “sufficient information for a prosecution, but this did not proceed as the complainants did not want the matter to go
to court”. Superintendent Trappitt explains this was to convey that the Panel considered that the information disclosed met a sufficient level of substantiation for the purposes of these particular vetting requests, even if it had not been tested in Court.

[19] This amended statement was disclosed to both the Fire Service and the Open Home Foundation on 1 August 2014. As a consequence, the plaintiff had to leave his job and accommodation at the rural property where the owners were to foster children, and he was unsuccessful in his application to join the Fire Service as a volunteer firefighter.

The plaintiff’s pleadings

[20] The plaintiff’s claim relates to the release of the information to the Fire Service. While he denies the allegations, he does not challenge the decision of the Vetting Service to release the information to the Open Home Foundation. However, he claims that the decision to release the information to the Fire Service was unlawful in that it did not comply with various rights of the plaintiff, including to obtain employment, to privacy, and to the presumption of innocence.²

[21] The plaintiff also claims that the decision was unfair in that the Vetting Service failed to give sufficient weight to various factors, including the impact on him, the fact that the information had not been tested in court, his age at the time of the alleged events, and his right to be presumed innocent. Furthermore, he says the Panel should have given him the opportunity to be heard before the decision was made to release the information.

[22] For the same reasons, he claims the decision to release the information was unreasonable.

[23] Furthermore, to the extent considerations of proportionality in decision-making apply in New Zealand law, he claims the decision placed a

2. Although the right to obtain employment was not pursued at hearing, except insofar as further disclosure could damage future employment prospects, perhaps in recognition that the role in the Fire Service was voluntary.

disproportionate weight on the untested risk raised by the information against the inevitable adverse consequences for the plaintiff’s application to join the Fire Service.

The Vetting Service

[24] Before discussing the claims made by the plaintiff, it is necessary to say something more about the Vetting Service. It was set up in 2000 and has developed since then, in an ad hoc way, in response to changing statutory requirements for pre-employment or pre-registration checks.³

[25] The Vetting Service does not operate within its own statutory framework. Rather, it is carried out as an administrative function pursuant to s 9 of the Policing Act 2008 for the purposes of maintaining public safety and national security.⁴ The provision of vetting services is, however, expressly referred to in s 79B(2) and (3) of the Policing Act where it is identified as an example of a “demand service” for which regulations can be made allowing for costs recovery. It is clear, therefore, that the provision of vetting services is recognised by Parliament as a lawful function of the Police.

[26] Police vets are generally required for roles that involve working with children, young persons or other vulnerable members of society. They are also required under various statutes where a “fit and proper person” test applies. For example, they are required under the Land Transport Act 1998 for taxi drivers and under the Education Act 1989 before a practising certificate to teach will be issued.

[27] Importantly, to access the Vetting Service, the requesting agency must meet certain criteria to be an “approved agency”, usually being agencies that provide care for children or other vulnerable people or who are otherwise required to screen or check individuals, such as Immigration New Zealand. Such agencies also have agreements with the Police which, among other things, set out certain responsibilities that those agencies have when making vetting requests. These include:

(a) Explaining the purpose of the Police vet to the individual concerned;

³ As was explained in the Joint Review at [24].

⁴ Being two functions of the Police under ss 9(b) and (f).

(b) Ensuring that the individual understands that any interactions with Police may be released and not just convictions; and

(c) Making their own independent assessment of the individual’s suitability for the role applied for, and not merely relying on the vetting results.

[28] It is clear that the Vetting Service processes large numbers of applications each year. As explained in the evidence of Mr Mathew Sadd, the Continuous Improvement Advisor for the Vetting Service, the Vetting Service now has 29 staff members, and processed more than 630,000 vetting applications in 2017. In 2014, the year the plaintiff’s requests were considered, the Vetting Service had 16 staff members and dealt with just under 500,000 requests.

[29] The vast majority of requests are relatively straightforward. There is either no information on file, or there is only information in the form of a conviction which is released or not, in accordance with the Criminal Records (Clean Slate) Act 2004. Around two per cent of the requests involve considering the release of non-conviction details and these are dealt with by Team Leaders in the Vetting Service. Some of those are escalated to a file review officer and approximately .05 per cent are referred to the Panel for consideration. The Panel is made up of senior staff drawn from the three business units within the Police: Communications, Criminal and Legal. They meet at regular intervals in relation to the most sensitive applications to consider whether non-conviction information should be released and, if so, in what form. The plaintiff’s vetting requests fell into that category.

[30] In giving evidence about how the Vetting Service makes decisions on whether to release information about a person other than convictions, Superintendent Trappitt explained that the tests of “relevance” and “substantiation” are used, saying “this helps ensure we only disclose information that could inform agencies’ hiring decisions, and that they can rely on”.

[31] In early 2015, a review was sought by the Vetting Service with the objective of reviewing the Police’s vetting policies and procedure to ensure that they were robust
and legally compliant. It was undertaken as a Joint Review by the Privacy Commissioner and the Independent Police Conduct Authority. The Joint Review was also to identify opportunities for improvement to policy and practice to achieve an appropriate balance between protecting the vulnerable in the community and protecting the privacy interests of individuals who were the subject of vetting applications.

[32] Both parties referred to observations and findings contained in the Joint Review to support their submissions. I found the Joint Review helpful in identifying the issues confronting the Vetting Service when processing a sensitive vetting request such as those relating to the plaintiff. The tests the Panel used of “relevance” and “substantiation” of information were identified in the Joint Review as important to reaching robust and consistent decisions.

[33] In respect of the “relevance” threshold for the release of the information, the Joint Review noted that such a threshold would need to “vary according to the nature of the risk posed. For example, a possible risk to vulnerable children should carry a lower relevance threshold than a possible risk to adults”.⁵ It also cautioned that some information, such as information about past mental health issues that were not related specifically to offending, should not be released. That is because the question of whether that is relevant to a particular role requires clinical expertise and Police vetting staff are not qualified to make such assessments.

[34] In terms of deciding whether the information is sufficiently substantiated to justify its release, the Joint Review’s recommendation was that the standard ought to be lower than the criminal standard of beyond reasonable doubt, but should vary according to both the nature of the information and the nature of the role that the person holds or is being considered for. That would mean:⁶

... [i]n some cases, a balance of probabilities standard is appropriate; in other cases (such as where the anticipated behaviour is child sexual abuse), it should be lower.

⁵ Joint Review, above n 1, at [38].

⁶ At [105].

[35] This proceeding is about whether the Panel had appropriate information to be satisfied that the information was sufficiently substantiated and relevant in order to reach its decision to release it to the Fire Service.

The issues

[36] The plaintiff’s pleadings challenge the decision to release the information to the Fire Service on a range of grounds. The pleadings also assert that because the decision involved his privacy rights, which are recognised internationally as important human rights, the Court should show less deference to the decision-maker and scrutinise the decision more closely.

[37] The plaintiff makes a range of specific criticisms of the decision, many of which are relied upon to advance more than one ground of review. Further issues were raised in written submissions and in oral submissions. The pleadings were not altered to reflect the additional points raised in oral argument. In fairness to the defendant, I have confined the issues to those raised in the pleadings and, to a lesser extent, to those further issues raised in the written submissions exchanged in advance of hearing.

[38] Given the number of issues raised, I consider it is more efficient to deal with the individual criticisms of the decision-making process before determining whether the claims that the decision was unlawful, unreasonable, unfair, and disproportionate, are made out.

[39] Approaching it in that way, the issues for determination are:

(a) What level of scrutiny should the Court adopt?

(b) Did the Panel have adequate information on which to make the decision?

(c) Should the Panel have had regard to s 22 Crimes Act 1961 and s 322 Children, Young Persons, and Their Families Act 1989?⁷

⁷ Which was the relevant legislation at the time.

(d) Did the release of information breach principle 8 or principle 11 of the Privacy Act 1993?

(e) Did the Panel ignore, or fail to give weight to, the plaintiff’s right to be presumed innocent until proven guilty?

(f) Did the Panel properly apply the test of relevance of the information to the Fire Service vetting request?

(g) Should the Panel have given the plaintiff an opportunity to be heard?

(h) Was the decision therefore unlawful, unfair or unreasonable?

(i) Was the decision to release the information a proportionate one?

(j) If the decision did err in one of the ways claimed, what relief can be granted in circumstances where the consequences of that decision are not able to be reversed?

What level of scrutiny should the Court adopt?

[40] Numerous decisions of the High Court and Court of Appeal have recognised that decisions involving fundamental human rights will attract more intense scrutiny than other decisions.⁸ This approach has been used, for example, in immigration cases where the person facing deportation may be at risk of torture if they are returned to their home country.⁹

[41] The plaintiff submits that privacy should be treated as a fundamental right and should, as Mallon J said in Kim v Minister of Justice, require the Court, in its supervisory jurisdiction, “to closely scrutinise the Minister’s exercise of the power”.¹⁰ While the plaintiff accepts that privacy interests are not among the fundamental rights

8. See, for example, Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA) at [212]; Ye v Minister of Immigration [2008] NZCA 291; [2009] 2 NZLR 596 (CA) at [303]; Waitakere City Council v Lovelock [1997] 2 NZLR 385 at 403.

⁹ See, for example, Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425.

¹⁰ Above n 6, at [7].

that are affirmed in the New Zealand Bill of Rights Act 1990, he says they are recognised in international human rights instruments and have also received increasing recognition in recent years in New Zealand, both in statute law and by the New Zealand Courts at appellate level. Because, in the present case, personal information was released, in breach of his rights of privacy, he submits the Court should review that decision more intensely than it would other administrative decisions involving less critical matters.

[42] In response, the defendant notes that while a number of High Court decisions and a few Court of Appeal decisions have invoked the North American “hard look” or the British “anxious scrutiny” language in the context of cases involving fundamental rights, the Supreme Court has thus far refused to adopt such an approach.¹¹ In any event, even where a statutory power affects a fundamental right, the Court’s focus does not shift from the lawfulness, reasonableness and fairness of the decision into its merits. This was recognised in the Kim decision relied upon by the plaintiff, where Mallon J acknowledged that:¹²

Heightened scrutiny is not a merits review. While it is difficult to define with precision what heightened scrutiny entails, in the present context I consider it requires the court to ensure the decision has been reached on sufficient evidence and has been fully justified, while recognising that Parliament has entrusted the Minister (not the courts) to undertake adequate enquiries and to exercise her judgment ...

[43] In summary, therefore, the defendant says that:

(a) heightened scrutiny does not apply in this case because the right in question (privacy) is not a “fundamental” right; but

(b) even if privacy is considered to be a fundamental right and examined through the lens of heightened scrutiny, this does not open the door to a merits-based review; the issue is still whether the Panel’s decision was unreasonable, unlawful, or reached in a procedurally improper manner.

11. Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597 at [5].

¹² Kim v Minister of Justice, above n 6, at [7].

Discussion

[44] I accept that a decision involving an individual’s right to privacy can be distinguished from decisions involving fundamental rights, such as the right to life or the right to freedom from torture, where the Courts have determined that some form of heightened scrutiny may be appropriate. That said, the Courts have accepted a high level of scrutiny may be engaged in other contexts, such as decisions that affect an individual’s ability to engage in environmental decisions that could affect them,¹³ and decisions that could affect employment prospects.¹⁴

[45] However, the disclosure of private information by the Vetting Service involves a balancing of considerations, because it may be in the public interest to allow disclosure of what is otherwise personal information. That tension between an individual’s rights and the public interest is reflected in the exceptions to the information privacy principles set out in the Privacy Act. They acknowledge that there are circumstances where privacy rights should give way to identified public interest considerations.¹⁵

[46] In my view, there is no reason to engage the concept of “heightened scrutiny” in this case, or to look more closely at the decision in light of the pleaded grounds of review. The proper approach is to review the Panel’s decision on recognised grounds and determine whether it withstands scrutiny on that basis. If the decision is made having regard to all mandatory relevant considerations and ignoring irrelevant considerations, in a procedurally fair manner, and the decision is open to a reasonable decision-maker, it will have taken account of these competing interests and will not be vulnerable on review.

Did the Panel have adequate information on which to make the decision?

[47] The plaintiff makes a number of criticisms of the information that was before the Panel. He submits that “the information placed before the panel was in summary form, remarkably brief and generated if not exclusively then almost substantially by

13. Pring v Wanganui District Council [1999] NZCA 173; (1999) 5 ELRNZ 464 at [7]; Westfield (New Zealand) Ltd v North Shore City Council, above n 8 at [116].

¹⁴ Z v Director of Proceedings HC Wellington CIV-2007-485-2631, 3 October 2008 at [18].

¹⁵ See s 6 Privacy Act and, in particular, privacy principle 11.

the Officer in Charge who had formed a very clear view apparently, that the alleged offending had occurred”. In a related submission, the plaintiff also criticised the Panel for not conducting its own investigation into the allegations, including viewing the evidential videos itself.

[48] He is also critical of the Panel relying on information that it had not challenged or tested. For example, it relied on an assertion that the complainants received counselling and medication, without testing what the nature of the counselling was, or what the medication was prescribed for. Similarly, it relied upon an apparent acknowledgement by the plaintiff’s father that it was possible the offending had occurred and he sought counselling for his son, when any such acknowledgement is denied by the plaintiff’s father in an affidavit before this Court.

[49] The defendant, on the other hand, says, of necessity, the Vetting Service and the Panel rely on information obtained by, and the impressions of, frontline staff involved in such cases. If the Panel was required to independently satisfy itself of the basis for all information provided by frontline staff the vetting system would be unable to function. It says this is not an unusual or surprising feature of the vetting system and individuals in positions of seniority in a variety of organisations will routinely rely upon the professionalism and integrity of other staff within the organisation and the provision of information to inform their decision-making.

Discussion

[50] It is not disputed that a decision-maker must have adequate information before it in order to make a decision.¹⁶ However, there is no general duty of pro-active investigation except where the insufficiency of existing information necessitates that.¹⁷

[51] In the present case, it must also be borne in mind that the decision is about whether to release existing information about a concluded Police investigation. It is not about the investigation itself. The Panel was not required to replicate the

¹⁶ Air Nelson Ltd v Ministry of Transport [2008] NZCA 26, [2008] NZAR 139.

17. See for example, Discount Brands Ltd v Northcote Main Street Inc [2004] 3 NZLR 619 (CA) at [47].

investigation, but to satisfy itself that the information emerging from that investigation, and which was being considered for release, was adequately substantiated and that the officer’s view that the relevant behaviour had occurred was reasonably held.

[52] In this case, there was affidavit evidence from Detective Campbell regarding her investigation of the complaints in this case. It is clear she was privy to all relevant information as she had viewed the complainants’ evidential interviews, interviewed the plaintiff, and spoken with other family members of both the plaintiff and complainants. The Panel was entitled to accept her professional conclusion on that matter, having engaged with her and sought further information from her on the scope of her investigations.

[53] While subsequent factual disputes may have arisen, those are not amenable to resolution on judicial review, unless it can be shown that the information before the Panel was plainly erroneous rather than simply contested. It is clear that the primary basis for the Detective’s view was her assessment that the recorded evidential interviews provided by the complainants were credible. The Panel was entitled, having made further enquiries of her, to accept her professional opinion on that matter, and I do not consider the decision is vulnerable on this ground.

Should the Panel have had regard to s 22 Crimes Act 1961 and s 322 Children, Young Persons, and Their Families Act 1989?

[54] The plaintiff submits that s 22 of the Crimes Act and s 322 of the Children, Young Persons, and Their Families Act were not considered by the Panel, and yet were relevant to whether he could have been convicted and, therefore, to whether the allegations were sufficiently substantiated.

[55] Section 22 of the Crimes Act requires that in cases involving charges brought against children between 10 and 14 (which the plaintiff was at the time of the alleged offending), the prosecution must prove both the acts relied on to lay the charge, and also that the child knew that the act was wrong, or that it was contrary to the law.
[56] Section 322 of the Children, Young Persons, and Their Families Act reinforces the need to progress charges against young people without delay and allows a Youth Court Judge to dismiss a charge against a young person if there has been unnecessary or undue delay between the date that the offence was committed and the hearing.

[57] In the plaintiff’s view, these were relevant to whether the officer in charge could reasonably conclude that the alleged offending had occurred because if the prosecution could not overcome these hurdles, a conviction could never result.

Discussion

[58] I consider the plaintiff’s submission fails to focus on what aspect of the allegations was relevant to the vetting process. As the defendant submits, the question for the Panel is not whether a prosecution would inevitably succeed if brought. It is whether the Police are sufficiently satisfied that relevant conduct which may constitute a risk to the safety of children or other vulnerable people is likely to have occurred. That is a different question from whether a prosecution relying on those facts could succeed. The presence of a defence, or a procedural barrier to prosecution, will not necessarily bear on whether the relevant behaviour is appropriately substantiated. The plaintiff’s concession that the information was relevant to the Open Home Foundation’s vetting request underscores this.

[59] I therefore do not consider that the Panel erred in its decision-making by failing to take into account the statutory defence in s 22 Crimes Act or the considerations in s 322 Children, Young Persons, and Their Families Act. What s 22 does highlight, though, is that age at the time of the offending is relevant to the seriousness of the offending and how much weight should be put on it when deciding whether it is relevant information warranting disclosure. This is a matter I discuss further below.

Did the release of information breach principle 8 or principle 11 of the Privacy Act 1993?

[60] The plaintiff’s pleadings assert that the decision breaches his right to privacy by disclosing information other than for the purpose for which it was gathered, which
was for Police investigative purposes. By implication he asserts a breach of privacy principle 11 which states that personal information shall not be disclosed except for a purpose for which it is gathered, unless certain defined circumstances apply.

[61] In written submissions, he also claimed that the change in wording of the information released, from there being “insufficient” to “sufficient” evidence to bring a criminal charge, was wrong and therefore was in breach of privacy principle 8 which requires information released to be accurate, and not misleading. In this case he submits that there was not “sufficient” evidence to charge because the complainants did not wish to give evidence. A prosecution could never have proceeded without that evidence so the earlier proposed wording of there being “insufficient” evidence was accurate and should have been retained.

[62] The defendant relies on the consent given by the plaintiff to release the information to the Fire Service as satisfying one of the express exceptions to the general principle that personal information should not be disclosed.¹⁸

[63] In respect of the assertion that the information released was misleading, the defendant says that, to the contrary, the final wording was revised to ensure that what was released accurately reflected the views the Police had formed.

[64] In any event, the defendant points out that under s 11(2) of the Privacy Act, a breach of an information privacy principle does not create a right of action enforceable in the Courts.¹⁹

Discussion

[65] I accept that the privacy principles are not enforceable in a Court of law. However, a failure to comply with them when making a decision to release personal information could well have consequences on an application for review. At the very least, those principles should be considered relevant considerations in making a decision to release personal information.

¹⁸ Being the exception set out at (d) of privacy principle 11.

19. Complaints regarding breaches of privacy may be made to the Office of the Privacy Commissioner and then to the Human Rights Review Tribunal.

[66] I am satisfied that, at least provisionally, the consent provided by the plaintiff authorised the disclosure of information and so there is no breach of principle 11 by the mere fact of disclosure to the requesting agency. However, that consent must be read as only authorising disclosure of material which is adequately substantiated, and which is sufficiently relevant to the matters being considered by the requesting agency. In other words, it is an authority to provide any information held by the Police which the Vetting Service, in the proper exercise of its discretion, considers should be released. It can not authorise the release of information that is, for example, inaccurate or irrelevant. Whether that is the case here is addressed in considering the other issues raised by the plaintiff.

[67] In terms of whether the information was released in a form that was accurate and not misleading, I consider that the description of the evidence as “sufficient” for a prosecution should not be interpreted in the unduly technical way proposed by the plaintiff. It is clear to an ordinary reader of the information released that the description of the evidence as “sufficient ... to proceed to a prosecution” was a conclusion as to the reliability of the evidence supporting the allegations. It was balanced by the statement that the defendant denied the allegations. I consider that, in this form, the information released was not misleading.

[68] For these reasons, I do not consider the Vetting Service erred by failing to have regard to the relevant principles of the Privacy Act.

Did the Panel ignore, or fail to give weight to, the plaintiff’s right to be presumed innocent until proven guilty?

[69] Although a pleaded ground of review was that the decision failed to have regard to the plaintiff’s right to be presumed innocent until proven guilty, that allegation was not explored in any further depth, except to the extent it arose under other topics such as whether in the circumstances he could have been convicted. Nevertheless, I briefly discuss the relevance of this consideration to the Vetting Service’s decision.

Discussion

[70] It is clear that the Vetting Service can release information where conviction has not resulted, and indeed where it could not result, and there is no absolute barrier to releasing such information. In my view, this concern is best taken into account when the Panel considers whether the information is sufficiently substantiated and relevant to warrant its release.

[71] While the presumption of innocence is fundamental to our criminal justice system, where the consequences of conviction are generally public, punitive and could involve the loss of liberty, the consequences of release of information by the Vetting Service are different. In the latter case, those consequences are required to be balanced against the risks that may be averted by the release of information to the particular requesting agency involved. Thus, the presumption of innocence is relevant to, but not determinative of, the Vetting Service’s decision. Instead, it is reflected in the requirement for the information to be both sufficiently substantiated and relevant. It is also reflected in the Joint Review’s conclusion that the level of substantiation required to justify the release of relevant information “should vary according to both the nature of the information and the nature of the role that the person holds or is being considered for”.²⁰

[72] In this case, the Panel clearly considered whether the claims were adequately substantiated. They also ensured that the form in which the information was released included the plaintiff’s denial of the allegations. By using these mechanisms, I consider that the Panel did, to the extent it needed to, give weight to the plaintiff’s right to be presumed innocent until proven guilty.

Did the Panel properly apply the test of relevance of the information to the Fire Service vetting request?

[73] The plaintiff notes that emails provided from the Vetting Service recognised that the role in the Fire Service is “only incidentally connected with children”. It also identified, as recorded in the minutes of the meeting, that there was a “very different level of risk in roles”, between the Open Home Foundation and the Fire Service.

²⁰ Joint Review, above n 1, at [104].

Despite this, the Panel records in the minutes of its meeting that the decision was made to leave it to the Fire Service to make up its mind on its relevance, saying “it is less relevant to Fire Service, but it may be best to give them the information and leave the decision to them”. The plaintiff says that this was quite wrong as it is for the Panel to decide whether or not to release the information having evaluated the risk that the plaintiff may pose against the privacy rights that the plaintiff must have, and the undoubted detrimental effects such a disclosure would have on any job prospect.

[74] The plaintiff also notes that while Superintendent Trappitt refers to the tests of relevance and substantiation being used, he does not define what he means by that.²¹ The plaintiff submits that while recognising the difference between the Open Home Foundation and the Fire Service, the Vetting Service failed to give that difference substance in their considerations. They wrongly left it to the Fire Service to determine its relevance. This flaw in the way the Vetting Service approached the analysis of disclosure in this case was aggravated by the fact that they did not give the plaintiff an opportunity to be heard on that issue.

[75] The defendant confirms that the criteria for evaluating information to be provided by way of Police vet are:

(a) whether the information in question is relevant to the position applied for; and

(b) whether the Police are satisfied the information held is sufficiently substantiated to be released.

[76] The defendant relies on Superintendent Trappitt’s evidence to support the fact that those criteria were applied in this case, saying that the Panel gave “particularly close consideration to the New Zealand Fire Service application and made a separate determination with respect to it”. There is no basis on which to assert therefore that the Panel did not properly apply the test of relevance.

21. While the submissions referred to paragraph 13 of the evidence of Mr Sadd, it is Superintended Trappitt whose gave this evidence.

Discussion

[77] In carrying out the vetting process, the Police have an obligation to ensure that only relevant information is released. While the Joint Review discusses this requirement in some depth in relation to information where suppression orders have been made, and in relation to disclosure of mental health information, it glosses over what steps are required to determine that information is relevant in other cases, except for saying that the Police must take “reasonable steps” to determine that information is relevant.²²

[78] In the case of mental health information, the Joint Review notes that Police vetting staff are not qualified to make an assessment of whether a person’s past mental health or related behaviour is relevant to a particular role, as that requires clinical expertise. They conclude, therefore, that they:²³

...do not consider it is appropriate for the Police to release, in a vetting response, information about the mental health of an individual where this information has been recorded in a non-criminal context and there is no evidence of any link between the individual’s health and any offending or direct risk to any other individual.

[79] The report goes on to observe that the Police proceed:²⁴

...on the basis that responsibility for assessing suitability for a job remains with the employer, and that the results of a Police vet are just one source of information... [however]... in most cases this does not reflect the reality.

[80] These observations support the fact that the Vetting Service must proceed with caution when deciding to release non-conviction information. It must be sure the information is relevant before releasing it and, in the case of mental health issues at least, the Joint Review cautions against releasing it because the Police are not adequately trained to make that assessment.

[81] In the present case, I also consider that the issue of relevance was not properly addressed by the Vetting Service. The thrust of its approach was to focus on substantiation and then, if there was the mere possibility of relevance, to disclose and

²² Joint Review, above n 1, at [94].

²³ Joint Review, above n 1, at [90].

²⁴ At [91].

leave it to the requesting agency to make the determination on relevance. While the Vetting Service may consider that its opinion that “fire fighters are likely to have access to children, particularly in emergency circumstances that could increase their vulnerability”, constituted an assessment of relevance, the confidence of that conclusion is undermined by its recorded decision that “it may be best to give [the Fire Service] the information and leave the decision to them”.

[82] Given the Vetting Service’s conclusions that the incidents occurred when the applicant was a youth, they involved relatively low level offending, and he was now an adult with no further known offending of that nature, it was important that it was satisfied there was a relevant risk, rather than leaving this to the Fire Service itself. This is particularly so in light of the prejudicial effect such information would almost inevitably have if released, regardless of its relevance. At the very least, in such circumstances, I consider this is a further category of request where, given the uncertainty as to its relevance, an opportunity should be afforded to the plaintiff to be heard, a topic I address under the next heading.

Should the Panel have given the plaintiff an opportunity to be heard?

[83] The plaintiff submits that his right to natural justice was breached because he was not given an opportunity to be heard before the Panel decided to release the non-conviction information to the Fire Service. In asserting this he relies, in particular, on observations made in R v Commissioner of Police of the Metropolis, which also involved a challenge to Police disclosure of information during the vetting process.²⁵

[84] In Metropolis, Lord Hope stated that where there is doubt as to relevance, substantiation or currency of information, the applicant should be given an opportunity to make representations to the decision-maker before disclosure, although:²⁶

... it will not be necessary for this procedure to be undertaken in every case. It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant. The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience of the chief constable.

²⁵ R v Commissioner of Police of the Metropolis [2009] UKSC 3.

²⁶ At [46].

[85] In the Joint Review there was also recognition that it was neither practical nor necessary to allow a broad class of applicants the opportunity to be heard on a proposal to release information.²⁷ However, the Joint Review recommended that the Police should give individuals an opportunity to comment:²⁸

... in every case where the Police know or have good reason to believe that the person concerned does not know that the material exists or, given the nature of their interactions with the Police, will not be expecting the release of that information in the context of a vetting application.

[86] In this case, the plaintiff suggests that either the approach in Metropolis should have been adopted, or that he falls into the category identified by the authors of the Joint Review because he did not know the Police could release information about the investigation to his potential employers. In support of the second submission, he relies on the letter sent to him on 17 June 2014 which he says suggests that the information would only be used if any further offending on any children was alleged. He was therefore not expecting the information to be released for any other purpose.

[87] The defendant, however, submits that the requirements of natural justice have always been inherently variable and context-dependent. Consultation, or the opportunity to make representations, will not be required in every case. As was identified by Elias J in Ali v Deportation Review Tribunal, the key elements warranting an opportunity to make representations are where there is surprise and potential prejudice.²⁹ If there is no surprise in an allegation or, even if there was surprise, there could be no prejudice because further notice would not have assisted the person affected to meet the allegation, then there is no unfairness in the process.

[88] In this case, the defendant says that the plaintiff was clearly expected to have known the substance of the information the Police held about him as he signed the consent form authorising the release of information on 9 June 2014, only five weeks after he had been interviewed by Detective Campbell about the allegations. At that stage he did not know whether the Police would proceed to prosecute him. In those circumstances, the defendant could reasonably assume that the plaintiff would recall

²⁷ Joint Review, above n 1, at [66].

²⁸ At [11],

²⁹ Ali v Deportation Review Tribunal [1997] NZAR 208 at 220.

those interactions with the Police and would be aware of the possibility they could be released by the consent he signed.

[89] The defendant argues that it is not its responsibility to ensure the plaintiff is not caught unawares by non-conviction information being disclosed when it had received a consent form from the plaintiff which expressly said that such information could be disclosed. Ms McCall also submitted that it would make the system unworkable if the Police were required to go behind the signed consent form in every case to check that a vetting subject was aware that information other than his or her conviction history may be released. In any event, she says that the defendant was well aware of the plaintiff’s response to the allegations, which was to deny them, and the summary of the information provided to the requesting agencies recorded this.

Discussion

[90] There is no doubt that the requirements of natural justice are context-specific. In this case, it is important to distinguish between the requirements triggered when investigating the original allegations and the requirements which might arise when deciding whether to release information.

[91] In terms of the investigation of the original allegations, the plaintiff was clearly made aware of them and had been afforded the opportunity to respond to them. He had taken this up by engaging with the Police, with the assistance of a lawyer, and denying the allegations. He then signed the consent form authorising the Fire Service to receive any information about him from the Police, not just non-conviction information.

[92] In my view, given the recency of his interactions with the Police, the possibility that the Police would release information about those allegations must have been apparent. This was not, therefore, a case where the plaintiff was unaware of the prejudicial material or had been given any reason to think it would not be released. Indeed, given the clear wording of the consent which the plaintiff provided, which authorised the release of “ANY information that may be held by Police, including any interaction I have had with Police in any context”, he was on notice of the possible release of this information. This is not a case therefore that comes within one of the
exceptions identified by the Joint Review as warranting an opportunity to make representations.

[93] In this case, the plaintiff signed this consent form while the investigation was ongoing and before he received the letter of 17 June 2014 confirming he was not going to be prosecuted. I do not consider any reliance can be placed on that letter to suggest the information would not be released. In any event, there is no inconsistency between what is in the letter and the ability to release information about the allegations in response to a vetting request.

[94] However, for the reasons set out in [82] above, I consider there was uncertainty as to the relevance of the information to the Fire Service request and, therefore, a need to be conservative about making the decision to release it unless the Vetting Service had reached a clear view that it was relevant. One option in that circumstance was to give the plaintiff the opportunity to be heard on the question of release. That would have allowed the opportunity to consider the relevance of the information to the particular agency making the vetting request, which was not a matter which the plaintiff had had an opportunity to consider and respond to in the earlier investigation.

[95] This is not to suggest that there is a general need to allow a right to be heard on any release of non-conviction information. I accept, entirely, the observation in the Joint Review that it would be impracticable for the Police to always give individuals advance notice if an adverse comment is to be provided to an agency. Instead, I consider that an opportunity to be heard is required in the circumstances identified by the Joint Review.³⁰ It should also be provided where there is a real question over whether it meets the test of being relevant to the risks that the person may pose in the position for which they are considered, as I have found was the case here.

Was the decision therefore unlawful, unfair or unreasonable?

[96] In my view the decision to release did not take account of the acknowledged requirement that the information be considered relevant to the plaintiff’s role in the

³⁰ That is, where the Police have good reason to believe the person concerned does not know the material exists or, where there is a reason to consider they will not be expecting the release of that information in the context of a vetting application: Joint Review, above n 1, at [68].

requesting agency. While it proffered a possible basis for it being relevant I consider the evidence shows it deferred the consideration of that issue to the agency itself, when it should not have done so. I therefore consider the decision was unlawful in that it failed to satisfy itself in respect of a relevant consideration which was the relevance of the information to the Fire Service role.

Was the decision to release the information a proportionate one?

[97] While not strictly necessary in light of my findings above, I comment on the plaintiff’s final ground of review, which is to submit that the doctrine of proportionality would allow the Court to hold that release of the information was not justified in circumstances of the Fire Service vetting request.

[98] In Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock identified proportionality as a conceivable fourth ground of review in addition to the grounds of illegality, irrationality and procedural impropriety.³¹

[99] The New Zealand Courts have been somewhat reticent about identifying this as a separate or standalone ground of review, preferring instead to see it as a particular aspect of unreasonableness review.³² For example, in Fitchett v Board of Trustees of Nelson College, this Court said:³³

... proportionality is not a stand-alone ground for review, but is best understood when considering whether a decision is unreasonable in the Wednesbury context. I also agree ... that an analysis of proportionality risks becoming a review of the merits of a decision...

[100] In a sense, that is acknowledged by the plaintiff in his submissions. He says “the very reason it may be regarded as unreasonable is because the decision was disproportionate”.

³¹ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410.

32. See, for example, Institute of Chartered Accountants of New Zealand v Bevin [2002] NZCA 270; [2003] 1 NZLR 154 at [55] and Conley v Hamilton City Council [2007] NZCA 543, [2008] 1 NZLR 789 at [58].

³³ Fitchett v Board of Trustees of Nelson College [2017] NZHC 1648, [2017] NZAR 1565 at [65].

[101] Thus, despite academic support for adopting proportionality as a discrete ground of review,³⁴ it has only featured in a limited range of cases, such as those involving challenges to bylaws.³⁵

[102] However, even in those cases where a proportionality standard is required, such as when a Court is called upon to determine whether the state has demonstrably justified the limitation of some right or freedom, the question is whether “the limiting measure serve[s] a purpose sufficiently important to justify curtailment of the right or freedom”.³⁶ That approach envisages there being a choice of measures available to achieve the objective sought and therefore the ability to select one that impacts on the personal right or freedom no more than is necessary to achieve that objective.

[103] In this case, the competing interests are the plaintiff’s right to privacy against the risk he might pose in any role to more vulnerable members of society. He accepts that his privacy interests should give way to those public interests at times, as acknowledged by his concession the information was appropriately released to the Open Home Foundation. However, in the context of a Police vetting request, the Police have no ability to select from a range of responses one which best balances the public interest against an individual’s privacy interest. They have a stark choice between withholding the information or releasing it. It is a binary choice; either the circumstances are sufficient to warrant release of the information or they are not. There is no ability to select an alternative option which better balances the two objectives.

[104] In these circumstances, I see no basis for applying a proportionality analysis. Rather, the decision to release the information must be defensible in light of the ordinary grounds of review and I have reviewed it on that basis.

34. See, for example, Philip A Joseph Constitutional and Administrative Law in New Zealand (4^th ed, Thomson Reuters, Wellington, 2014) at 24.5.2 (4).
35. See, for example, Schubert v Wanganui District Council [2011] NZHC 48; [2011] NZAR 233 and Conley v Hamilton City Council, above n 24.

³⁶ Cropp v A Judicial Committee [2007] NZHC 449; [2007] NZAR 465 (HC) at [64].

What relief should be granted?

[105] The relief sought by the plaintiff is simply that the following declarations are made:

(a) that the decision to release the information was wrong on the grounds pleaded; and

(b) that the information should only be used by the Police for investigative purposes and not disclosed to outside agencies in terms of job applications made by the plaintiff and in the course of applications to travel to other countries that may require Police vetting.

While the pleadings also sought damages, that was not pursued at hearing.

[106] I see no difficulty with making a declaration along the lines of the first declaration sought. However, I see no basis for making the second declaration.

[107] During the hearing it was acknowledged that the information in question would not be relevant to requests for disclosure of convictions for the purpose of travelling to other countries. In terms of requiring the information to be disclosed only for Police investigative purposes and no other, I see no reason to confine the functions of the Vetting Service in this way. First, I see no error in the Police having released this information in response to the vetting request from the Open Home Foundation. That would not have been possible if a declaration had been in place in the terms sought by the plaintiff. Furthermore, while it was agreed by all that the relevance of this information to any request would abate with time, perhaps to the point where it had no relevance at all, that would not be the case if for example, a further allegation of this nature was made. If I made the second declaration sought, the Vetting Service would not be able to provide what they may consider relevant information to a requesting authority (being the complete history of offending allegations if a subsequent allegation had been made) because they were constrained by my declaration.
[108] I have no doubt that the Police endeavour to carry out the function of the Vetting Service in a responsible and principled way. That is demonstrated by them seeking, and implementing, the guidance found in the Joint Review. I consider the making of a declaration in respect of the decision in question is sufficient vindication for the plaintiff and will give guidance to the Vetting Service in respect of future requests.

[109] Accordingly, I make the following declaration:

(a) the decision by the Vetting Service to release the information about the plaintiff to the Fire Service was in error because it deferred the assessment of relevance to the requesting agency instead of satisfying itself that this requirement was met.

Costs

[110] Costs should follow the event. Leave is reserved to determine costs if they can not be agreed. However, I see no reason why 2B costs would not be appropriate.

Name suppression

[111] The plaintiff has sought permanent name suppression. This was granted on an interim basis prior to hearing. The grounds on which it is sought is that the very subject matter of the proceedings is to prevent disclosure of the allegations because of effects on his privacy and his ability to obtain work. Furthermore, such publication would cause embarrassment and distress to both him and his family. While the plaintiff acknowledges that the business of the Court should be open to the public, and that this is a fundamental principle, the circumstances of this case justify an exception.

[112] I accept that in civil proceedings, the power to suppress lies in the Court’s inherent jurisdiction, but that the starting point is that the business of the Court should be open to the public.³⁷ However, the decision as to whether to suppress some aspect of what was presented to the Court does not require exceptional circumstances to be

³⁷ ASB Bank Ltd v AB [2010] NZHC 1104; [2010] 3 NZLR 427 at [9].

demonstrated. Rather the question is whether the circumstances justify an exception to the fundamental principle of open justice.³⁸

[113] In this case, the only suppression sought is of the plaintiff’s name. The factual background, the issues at stake, and the decision made are all apparent on the face of the decision. Publication of the plaintiff’s name will add nothing to the understanding of the issues but will have adverse effects on the plaintiff in terms of his right to be presumed innocent until proven guilty, the potential effect on his personal and work life, and the personal embarrassment of having this information being made public. I see no overriding public interest that would warrant such disclosure.

[114] I have no hesitation in those circumstances in saying it is appropriate that permanent name suppression should apply and, for the record, no opposition to the same was raised by the defendant. Accordingly, I order that the plaintiff’s name be permanently suppressed.

Solicitors:

P J Shamy, Barrister, Christchurch Crown Law, Wellington

³⁸ At [14].