Whether a recorded conversation is personal information will depend on what is said “about” the relevant individual.
This was the finding of the Court of Appeal of New South Wales in a recent case. New Zealand courts have applied a broader interpretation.
In Turnbull v Strange, Mr Strange alleged that property transfers had been made by a Mr Turnbull (now deceased) with an intent to defraud creditors. Mr Strange was a creditor. The transfers had been made by Mr Turnbull to his wife, Mrs Turnbull, while he was in prison.
A subpoena was issued requiring a Property Officer of Corrective Services to produce “audio and transcript" of recorded conversations between Mr Turnbull and Mrs Turnbull, or Mr Turnbull and his son. The executors of Mr Turnbull's estate and Mrs Turnbull applied for orders that the subpoena be set aside or, alternatively, that any documents provided to the Court not be provided to Mr Strange.
The Privacy and Personal Information Protection Act 1988 (NSW) and the New Zealand Privacy Act 1993 regulate what agencies may do with “personal information", and the definitions in each are broadly similar.
They both define personal information as information about an individual who can be identified.
Whether information is “about" an individual is a perennial issue and one that agencies can find difficult to apply. The trans-Tasman divide on how to apply the definition neatly illustrates the issue.
Last year, in Privacy Commissioner v Telstra, the Federal Court of Australia found that the words “about an individual" mean that the individual must be a subject matter of the information or opinion.
In contrast, in an advisory opinion issued in 2016, the New Zealand Privacy Commissioner commented that:
“The definition of personal information is … wide and can apply to any piece of information that identifies or is capable of identifying an individual, and that can 'say something' about an individual."
On this approach, the individual does not have to be the subject matter of the information.
In Turnbull v Strange, the Court referred to the Telstra decision, and noted, in the context of a recorded conversation that statements by an individual:
- are unlikely to constitute information about that individual, but
- may be personal information if made of another person (for example, that the individual held a certain opinion, or knew certain things at a particular time).
On the facts in Turnbull, it was unlikely that everything sought by the subpoena would be personal information.
Chapman Tripp comment
The approach in Turnbull confirms the nuanced approach that the Australian courts have taken to determining whether information is personal information. On that approach, it is crucial to examine the subject matter of the information in detail.
The New Zealand courts have not recently considered the question of what constitutes personal information.
In Harder v Proceedings Commissioner,the Court of Appeal warned against an “unqualified" or “unrestrained" approach to personal information. However the Court of Appeal's invitation to take a more disciplined approach to the definition of personal information has not been taken up by successive Privacy Commissioners, and in New Zealand a broader approach to the scope of personal information prevails.
The definition of personal information is not part of the privacy reforms currently before Parliament.
Our thanks to Rose Goss for writing this Brief Counsel.