Education Reform Bill (No. 2): Disclosure of Information
79 The Education and Science Select Committee requested a comment from the LAC on clauses 7 and 8 of this Bill. Those clauses provided for the compulsory disclosure of information to the Department of Social Welfare by tertiary institutions and private training establishments offering post school education or training by inserting new sections 226A and 238A into the Education Act 1989.
80 The information related to full-time students and covered their full names and addresses and their dates of birth. The purpose of obtaining the information was to determine the entitlement or eligibility of a person to particular benefits under the Social Security Act 1964, and the amount of the benefit. The provision of the information would in pact be subject to the Privacy Commissioner Act 1991. At the time that we were asked to comment on these clauses other possibly relevant provisions of the Privacy of Information Bill were still before the Justice and Law Reform Select Committee.
81 The effect of the proposed changes appeared to differ from the existing information matching provisions as enacted in the Privacy Commissioner Act 1991 in at least two important ways:
(a) the bodies required to provide the information were not part of central government and indeed could be privately owned and not in receipt of any government funds; and
(b) information received in a confidential context for an educational purpose would be used for a quite distinct purpose.
82 The Committee submitted that those differences raised important general questions which should be addressed in a comprehensive way, and that they were not matters which should be resolved simply in the context of one particular regulated activity (tertiary education) and one particular purpose (the correct payment of certain benefits). In our view, a more comprehensive consideration of such matters should involve relevant information being provided and the principles being stated and developed. The LAC believed that the critical function of the Privacy Commissioner in inquiring into and reporting on these matters under section 5 of the Privacy Commissioner Act 1991 should be considered.
83 So far as the bodies affected were concerned, many other bodies outside central government hold information about the names and addresses of individuals. That information could be of value to the Department of Social Welfare. It could also be of value to many other public and private agencies. The Committee raised the following questions:
- what in fact is the likely value in the present case?
- what is the policy being developed here?
- what are the balances to be struck between the competing principles?
The LAC asked the select committee to consider a number on matters, for instance:
- the distinctions that might be drawn between different holders of information (including the various departments within central government, other public bodies,and private bodies);
- the distinctions that might be drawn between different requesters (in the present case, requesters such as the Department of Social Welfare, the Ministry of Health, the new Crown Health Enterprises, Accident Rehabilitation and Compensation Insurance Corporation (ARCIC), the Department of Labour, the Inland Revenue Department, the Police, and private creditors);
- the likely importance of the required information in achieving the intended purpose; and
- the importance of that purpose, measured against both the breach of confidence and the likely advantages of that breach.
84 The third point would require consideration of existing powers to obtain information and their value, for example, section 11 of the Social Security Act 1964. The Committee, therefore, put forward the following questions:
- What are the limits on these powers, for example, section 35 of the Evidence Amendment Act (No. 2) 1990?
- How does the existing power to obtain information operate in practice?
- What use has been made of that power?
85 The proper purpose principle - the second matter alluded to in paragraph 81 above - was stated in the Privacy of Information Bill as:
Principle 14 Limits on disclosure of personal information
(1) An agency that holds personal information shall not disclose the information to a person or body or agency unless
...
(c) The purpose for which the information is disclosed is directly related to the purpose for which the information was obtained; or
...
That principle was drawn from established privacy doctrine. There were of course other limits. The only other possibly relevant limit in the Bill was that the disclosure was reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty.
86 The LAC pointed out that the provisions for information matching contained in the Privacy Commissioner Act 1991 had at least the first three, and possibly all, of the following characteristics which were not to be found in the new proposals:
(1) the provisions related to the sharing of information within one single body, the Government of New Zealand (the only exception being the ARCIC, which is, however, a government appointed body and administers a scheme of benefits and levies both of which are fixed by or under statute);
(2) the information was both provided and sought in the context of the individual's financial relations with the State - tax and social welfare, accident compensation or education benefits;
(3) any two departments involved in sharing information must have a written agreement incorporating provisions that reflect the information matching rules, or provisions that are no less onerous than those rules, before a matching regime can operate (the Committee considered that institutions covered by this Bill may well be less likely to reach such an agreement than are departments, and the Bill attempted to deal with a failure to reach an agreement by requiring disclosure in accordance with arrangements settled by the Privacy Commissioner who appeared to have the power to decide whether the purpose of the provision was given effect to or not) - in that case, the institutions could be compelled to disclose the information; and
(4) the particular information is on a public record (birth, deaths and marriage registers and court-ordered imprisonment) or could be publicly observed (departure and arrival: Customs and Immigration - where the relevant forms also indicate a very broad potential use of the information).
87 The proposed provisions appeared to be difficult to justify in the light of the relevant principles and the above differences between the proposals and the existing information marching arrangements; and they certainly required fuller consideration. The Committee considered that clauses 7 and 8 should not be enacted unless a more comprehensive consideration of principles and competing considerations showed them to be justified.
Legislative Outcome and Comments
88 The Education Reform Bill (No. 2) was enacted as the Education Amendment Act 1993. Apart from some minor changes, the wording of the relevant provisions (sections 15 and 16 of the Act) is the same as in clauses 7 and 8 of the Bill, and it appears that there was no comprehensive consideration of principles and competing considerations.
89 It is easy to understand the State's concern, and its responsibility, to satisfy itself (verify) that taxpayer-funded benefits of various kinds (in this case, sickness, unemployment, training, and independent youth benefits) are directed to those who both need them and, by their circumstances, qualify to receive them. This is an important consideration, but so too is the consideration that the benefit verification process should not expose citizens to the risk of unwarranted or improper invasions of their personal privacy. While the law often has an economic purpose it should accord with principle.
90 It is, therefore, of concern that the provisions of this legislation are not consistent with some of the privacy principles set out in the new Privacy Act 1993. Information received in a confidential context for an educational purpose could be used for a quite distinct purpose. The bodies required to provide information, and which commit an offence punishable by a fine if they do not, are not part of central government and in some cases can be privately owned and not in receipt of any government funds. Further, the stated purpose of obtaining the information is to determine "the entitlement or eligibility of any person to or for any benefit". The term any person suggests that the person whose entitlement or eligibility is being verified need not necessarily be the student about whom information is being sought.
91 It seems reasonable to conclude that some of the provisions in the Education Amendment Act 1993 put some strain on the privacy principles stated in the Privacy Act 1993, and that the balance between competing considerations has been tipped toward reduced personal privacy for the ordinary citizen. The relevant provisions in the Education Amendment Act 1993 should have been justified in the light of the provisions of the Privacy Act 1993, and could well have involved a restatement of relevant principles and policies. A similar comment could be made in respect of the Social Welfare Reform Bill (No. 3) - see Section II of this report.