Gehan Gunasekara: Dangers of tenant database

Information is power, it is said. Those who possess it have the ability to wield disproportionate control over those who are at the receiving end. To redress this and other imbalances, laws exist to protect citizens and consumers against the predations of employers, big business, and landlords, among others.

One element in the matrix of consumer protection is our Privacy Act. The act has been in force for more than 10 years, so it is disappointing to find that not only are the safeguards in the legislation disparaged more than they are commended but that the rules themselves are observed more in the breach.

The most egregious recent instance has been the reported existence of a database containing information on tenants. It was said that as many as 400,000 New Zealanders may find their personal information on this database.

The database is maintained by the Real Estate Institute and is said to contain details about past tenants, for the benefit of future landlords.

Access is limited to licensed real estate agents who manage rental properties so the database is not a true "public register" such as, for example, the motor vehicle register.

The fact that the database's existence was concealed for six months is itself a possible breach of privacy rules and perhaps indicates one area where our law could be tightened up to match the standards of the European Union - anyone establishing a private database containing personal information to which others can have access should have to notify the fact to the privacy commissioner.

More contentious is the type of data contained on the register.

Apart from seemingly innocuous information such as name, age and length of tenure, more sensitive information such as details as to rent or bond disputes and "evaluative" information, such as the condition of the property when vacated and therefore, by implication, a "credit rating" of the tenant is envisaged.

With time it is not hard to imagine tenants who find themselves on a further "black list" containing those who, for one reason or another, have had a run-in with a landlord.

Of course, many tenants are bad eggs and, for that reason, it is possible to sympathise with the predicament of landlords who seek to have access to reliable information about prospective tenants.

On the other hand, not all landlords are reasonable in their expectations as to the condition in which tenants leave a property when vacating it.

To allow the landlords' subjective opinions to be the basis for an "independent" database is questionable to say the least.

Against this backdrop, several of the rules - called information privacy principles - have the potential to be breached by use of the tenancy database. In the first place, information about tenants must be collected directly from them. This may not be necessary in the case of, say, information as to their good conduct or otherwise. But it appears that other details, such as age, have been collected by the institute from landlords instead of directly from tenants.

The landlords themselves are under a duty not to convey information about tenants to others and to inform tenants beforehand of the fact that their data may be put on a register available to others. Such information ought to have been notified at the outset, not belatedly by the institute.

The agency maintaining the database needs to continuously ensure its accuracy (if a mistake occurs, the institute as well as the landlord may find itself facing a privacy complaint) and allow tenants the right to access their files. Where information is in dispute, tenants are entitled to a notification on the file to this effect.

Information gathered for tenancy purposes cannot be used for other purposes - the information cannot, for instance, be sold to credit agencies or insurance companies.

There is a real danger that others may find the existence of such a database useful for their own ends. Big Brother is still very much present and tenants would do well to be aware of their rights to privacy.

* Gehan Gunasekara lectures in commercial law at Auckland University.