Gehan Gunasekara: Bumbling officials wrong to play privacy card

Gehan Gunasekara says: 'Privacy ought not to be confused with poor management and bureaucratic incompetence.' Photo / Thinkstock

Privacy rules - whether real or imagined - are inevitably cited as an excuse when bureaucratic bungling occurs in relation to managing people and information.

This was evident when the Prime Minister unveiled yet another investigation into government conduct, this time in relation to the brazen flight of convicted murderer Phillip Smith to Brazil.

John Key hinted that, somehow, privacy concerns may have been a factor in the failure to detect Smith's change of identity and obtaining a passport in the name of his birth certificate and that giving up our privacy may be a necessary price to prevent a recurrence.

What absolute claptrap. The acronym "Botpa", signifying personal information cannot be shared "Because of the Privacy Act" has been a familiar refrain since the law's enactment, to the extent that the Privacy Commissioner's office has produced cartoons lampooning the practice and it is often incorporated into training programmes offered by the office.

The legislation was often seen, especially in its early days, as a convenient reason why company employees need not comply with requests by customers and others for information. Airlines would not give out passenger lists for this reason. Previously, they cited company policy as a reason.

Twenty years on we must have moved beyond this. The Government has had more than six years to improve rules for the sharing of personal information and has amended the Privacy Act to enable this. In 2013 a new Part 9A was inserted into the Privacy Act allowing information-sharing agreements (between public sector agencies; and between public and private sector agencies).

One goal of Part 9A was to enable agencies to detect wrongdoing by individuals. Hence, an individual who receives an unemployment benefit when not entitled would be found out if data was shared between Inland Revenue and the Ministry of Social Development.

It would not be a stretch to say the misconduct aimed at was precisely the type of conduct alleged to have been engaged in by Phillip Smith which includes tax evasion and similar rorts.

Part 9A greatly simplified the procedures for information sharing between agencies aimed at preventing these mischiefs. Failure to utilise the opportunities for information sharing suggests mismanagement within government agencies rather than a failure of the rules under which they operate.

It is reminiscent of a carpenter blaming his tools when insufficient nails are used to prop up a building.

It is also worth noting that the privacy rules under which companies and government agencies operate in New Zealand contain within them many exceptions in relation to such matters as health and safety and law enforcement.

Thus, it is never an excuse to refuse to disclose personal information when a serious threat arises in relation to public health or public safety, or where the information is necessary for the prevention, detection, investigation, prosecution and punishment of offences.

The present Government adopted the recommendations of the Law Commission in this regard by removing the word "imminent" so that any serious threat was sufficient even though it may not be an imminent one. There is a good deal of evidence pointing to the fact that agencies that manage personal data efficiently are also likely to be more efficient in other areas of their business.

Privacy awareness is good business and, in the case of government agencies, good management. Privacy ought not to be confused with poor management and bureaucratic incompetence.

Gehan Gunasekara is an associate professor in commercial law at the University of Auckland Business School and advised the Law Commission in its review of the Privacy Act.