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Why has my information been withheld? Shaun Ritchie
19 July 2017

Lock and Key

The Privacy Act gives you the right to request access to information about you (see principle 6). That right to access your personal information is essential if you want to maintain some understanding and control over who knows what about you. Your right of access is strong, and does not require you to provide reasons for wanting information.

The Act includes reasons that an agency may rely on to refuse all or part of your request. You are also entitled to know that information is being withheld from you and why it is being withheld.

It can be confronting to have portions of documents ‘blacked out’ or withheld, and it is easy to fall into the trap of assuming that something highly sensitive or important is being hidden.

Fortunately, that’s where we can help. One of the roles of our Office is to review information that has been withheld. We can provide an independent assessment of whether the withholding grounds have been correctly applied.

Quick guide to the withholding grounds

Below is a quick guide to the most common withholding grounds and the sort of information which is typically withheld.

Unwarranted disclosure of affairs of another

This section (29(1)(a)) allows an agency to withhold information that is about someone else. This is commonly used to withhold:

  • information about someone else that happens to be stored with your information;
  • portions of ‘mixed’ information where another individual is identified;
  • the identities of people who may have complained or raised concerns about you.

Often it is possible to provide a summary of the information in a way that doesn’t identify other individuals. This is something you can ask for.

Maintenance of the law

This section (27(1)(c))allows an agency to withhold information if disclosing that information would be likely to prejudice the maintenance of the law. It is commonly used to withhold:

  • information held by Police that could affect an investigation or reveal investigative techniques, if disclosed;
  • the names of informants.

This withholding ground will usually only apply when there is an active or ongoing investigation or legal process. Once the investigation is complete, the risk to the maintenance of the law will generally no longer exist. You may be entitled to information withheld under this section if you ask again, after the investigation is over.

Information does not exist – or cannot be found

This section (29(2)(b)) allows an agency to refuse a request for information when the information does not exist or cannot be found. This is commonly used to withhold:

  • information that was never recorded or never existed;
  • information that has been destroyed (as a matter of process or by mistake); or
  • information that has been misfiled and cannot be located.

Relying on this withholding ground can indicate issues with record keeping and storage. There is no obligation under the Act to record information but once information is held, it needs to be kept secure.

Evaluative material

This section (29(1)(b))allows an agency to withhold information that is ‘evaluative material’ which was given to the agency under a promise of confidentiality.

This is commonly used to withhold references provided to prospective employers.

If information is withheld from you under this section, you might consider making a request for information directly to the person or agency who supplied the information.

Where another law applies

Section 7 of the Privacy Act says information may be withheld when another law restricts access to personal information. For example, section 11 of the Immigration Act 2009 restricts the application of principle 6 of the Privacy Act in relation to certain classes of information held by Immigration New Zealand.

Further points to note

  • The starting presumption is that you are entitled to access personal information an agency holds about you.
  • Your request does not need to be made in writing, but it is often helpful to have evidence of your request in the event of a complaint.
  • The agency you have requested information from should explain that information has been withheld and why. This includes reference to a withholding ground, as well as an explanation of why it applies.
  • There may be alternative ways to answer your concerns. A summary note or discussion with the agency may resolve the issues that prompted your request.
  • The Privacy Act allows you to request access to your personal information – it does not require an agency to generate new information in order to answer your questions.

Image credit: Wikimedia commons.

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