The Privacy Commissioner has concluded that Nicky Hager’s privacy was breached by his bank when it disclosed information after being asked by the Police to do so.
This decision relates to the Police inquiry into the material contained in the 2014 book Dirty Politics. As was common practice, Police sought personal information about Mr Hager from the bank (and other agencies) without a warrant. The bank disclosed the information to the Police, as it considered it was authorised to do so under the disclosure provisions of its standard terms and conditions, and under the exception in the Privacy Act 1993 allowing disclosure where an agency believes on reasonable grounds that disclosure is necessary in order to ensure maintenance of the law.
The Privacy Commissioner, however, considered that the bank could not reasonably believe that every customer agreed to the disclosure of their information to the Police without a warrant when agreeing to the standard terms. It remains unclear, for the moment, how explicit standard terms would need to be to allow for such disclosure or whether agencies can, in the Privacy Commissioner’s view, rely on standard terms at all.
The Privacy Commissioner also held that the bank had not provided sufficient evidence to demonstrate that the disclosure was necessary to avoid prejudice to the maintenance of the law (under Privacy Principle 11(e)(i)).
It is important to note that a different conclusion could be reached by the Human Rights Review Tribunal, should the matter proceed to the Tribunal. However, if the Privacy Commissioner’s decision is right, then the lesson to be taken is that a mere inquiry from law enforcement agencies will often not be sufficient to meet the threshold in Privacy Principle 11. As matters stand, therefore, agencies would probably be wise to require more formality from law enforcement agencies, even if they have the benefit of apparently broad standard terms.
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