Guidelines on a website are not advice

datePosted on 15:31, July 28th, 2009 by Lew

I’m not a big-city lawyer either, but Paula Bennett might have done well to consult one here.

In response to a parliamentary question from Charles Chauvel asking whether she’d taken advice as to whether the two women whose details she revealed after they questioned the government’s decision to cut the Training Incentive Allowance could be deemed to have given consent for the rest of their details to be released by going to the medias. Her answer was, more or less, “I looked at the guidelines that were on the Privacy Commissioner’s website” and a wee bit of misdirection about the previous Labour government.

The guidelines specify that a minister “need only believe, on reasonable grounds, that the individual has authorised the disclosure”, and later admitting that she did not make enquiries of “her officials or anyone else” as to the details she released. Without checking precedent or taking legal or policy advice, how can she claim “reasonable grounds” for implicit consent from a few brief and specific quotes in the Herald on Sunday?

The problem her stance raises – and perhaps the very reason for her taking it – is its chilling effect on political speech. If anyone who is dependent on the government for any part of their income (or other services) is liable to have the details of their cases made public for criticising the department upon which they rely, then that department is very effectively insulated from criticism. Being insulated from criticism means not being held to account for failings, and not being held to account for failings leads to a culture of impunity, a central plank of National’s election campaign against the former government.

I expect there will be a few smart privacy lawyers who’ll offer their services to the two women in question for a nominal fee, and the government would do very well to sharpen up. This is political gold for the opposition if the minister does not immediately back down and offer mea culpas of some sort. If the Prime Minister is required to pick sides, this is an important juncture for the government. She didn’t take advice. She can’t know what reasonable grounds are. Being a cabinet minister requires high standards of conduct and certainty. An employer would never get away with ‘I checked the website and then fired him’. If this goes to court, it won’t matter who wins or loses the case – the government will lose a bit of its shine, and so will its beleaguered Minister of Social Development.

There are good threads about this at the Dim Post.

Edit: Eddie has done some further digging to nail this down, too.

Edit 2: Woah, simultaneous linkage. There is no cabal, really.

Edit 3: It occurs to me that this is a political n00b’s monkey-see-monkey-do response to the Burgess case, where Labour and the media released some but not all details, and National used the remainder of the details to invalidate the political points being made. The differences with this case are that someone’s property holdings are a matter of public record, not information held by the government; and even if they were, property holdings are directly relevant (implied consent clearly applies) since the issue at hand hinged on the Burgesses losing their house, a matter which they brought into the public sphere.

I reckon Bennett saw what a big win the government had with the Burgess case, figured she’d do the same with this case, and overreached. Schoolgirl mistake. But I think it’s giving far too much credit to call this a rope-a-dope by Labour.

L

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26 Responses to “Guidelines on a website are not advice”

  1. [...] piece from Lew at Kiwipolitico [...]

  2. Paul Williams on July 28th, 2009 at 15:52

    Very well made points Lew. Key needs to act to reassure the public that other Ministers won’t be following Bennett’s dangerous lead.

  3. Fry on July 28th, 2009 at 15:55

    Bennett’s gone far too far, and Key’s going to look up very bad if he keeps defending her too long.

    “I’m not a big-city lawyer either” – alwasy reminds me of “I’m just a simple hyper-chicken” http://theinfosphere.org/Hyper-Chicken

  4. Twins! « The Dim-Post on July 28th, 2009 at 16:14

    [...] Lew makes a similar point: It occurs to me that this is a political n00b’s monkey-see-monkey-do response to the Burgess [...]

  5. BLiP on July 28th, 2009 at 16:20

    That John Key himself is “relaxed” about this new National Inc tactic of silencing dissent is certainly chilling. The Pricacy Commissioner makes it clear that the information on the site:

    is only general information, intended to give guidance. It should not be regarded as legal advice, and we accept no responsibility for any consequences arising if people use it in place of legal advice.

    Whether or not John Key flip-flops on this one, will be interesting to watch. Its not as if Bennett has a clear record with him after her use of the title “Minister” in her correspondence with the Justice Department when seeking early parole for her gangsta son-in-law. And its not as if John Key has not had a lot of practise flip-flopping.

  6. Luke H on July 28th, 2009 at 16:52

    … someone’s property holdings are a matter of public record, not information held by the government; and even if they were, property holdings are directly relevant (implied consent clearly applies) since the issue at hand hinged on the Burgesses losing their house, a matter which they brought into the public sphere.

    What Bennett revealed was the total amount of money supplied to the two women by the state; the matter at hand hinges on whether the amount of money they receive from the state is sufficient or not. Seems like a similar situation?

  7. Anita on July 28th, 2009 at 17:18

    Luke H,

    There is a huge difference between information which is on a public register and information which is private and held in confidence.

  8. Lew on July 28th, 2009 at 19:38

    Luke,

    I know my conditional excluded the difference Anita raises. The point is that the HoS article and the information released for it by the two women in question wasn’t about the amount of money they receive from the state – it was about a specific allowance they no longer receive, due to no change in their own circumstances and having nothing to do with their other entitlements. Let’s be clear: the issue here isn’t entitlements; it’s information.

    L

  9. andy on July 28th, 2009 at 20:18

    I expect there will be a few smart privacy lawyers who’ll offer their services to the two women in question for a nominal fee, and the government would do very well to sharpen up. This is political gold for the opposition if the minister does not immediately back down and offer mea culpas of some sort. If the Prime Minister is required to pick sides, this is an important juncture for the government. She didn’t take advice. She can’t know what reasonable grounds are. Being a cabinet minister requires high standards of conduct and certainty. An employer would never get away with ‘I checked the website and then fired him’. If this goes to court, it won’t matter who wins or loses the case – the government will lose a bit of its shine, and so will its beleaguered Minister of Social Development.

    cross post from the standard:

    She lied in the house or on Campbell Live

    Watch this from the house today:

    http://www.nzherald.co.nz/nz/news/video.cfm?c_id=1&gal_objectid=10587131&gallery_id=106699

    Watch this from Campbell Live:

    http://www.3news.co.nz/Video/CampbellLive/tabid/367/articleID/114272/cat/221/Default.aspx#video

    She lies at 1.29 in the Campbell live video about getting advise, in question time it was the website only.

    She is a liar and a bully, the authoritarian right love her.

  10. Anita on July 28th, 2009 at 20:26

    andy,

    I’ve read the question time transcript several times, and I can’t find her directly stating she didn’t get advice. I know it’s hair splitting, but I don’t think she’ll get pulled up for lying however misleading her answer was.

    I utterly agree about the bully statement tho, I’d also add unethical and if it wasn’t illegal it damned well should be.

  11. [...] to concur, and citing the Privacy Commission’s website as a backup? Not the best idea you ever had because if there’s one thing bloggers love, it’s being able to just check things [...]

  12. Unpleasantly Odouriferous on July 28th, 2009 at 23:04

    Wow. I read about it this morning and my jaw literally dropped. An astounding breach. That the celebratory chorusline of stupidity over at Farrar’s clearly shows, the depth of this breach does not appear apparent to those of the more authoritarian bent. But to any one with more than a casual regard for law and rights, this is an appalling mis-step. The Right so love to talk about individual rights and freedoms but it’s times like this that you realise “rights” and “freedom” is just code for “privilege” and “dominance”. As if we needed another example, but this is the day the National led government showed its true colours: Black and blue. It’s more than bullying, it’s an abuse of power. It is unlawful, Anita. But the remedies under the Privacy Act are inconsequential. The real punishment is political. That is why those of us who give a damn about privacy and rights need to shout our indignation from the roof tops. Make the talkback callers understand.

  13. Pablo on July 28th, 2009 at 23:44

    Given that I have an acute interest in the issue of consent (as posted in “Deconstructing Democracy: Consent” a month ago), I would like to ask what exactly is “implicit” or “implied” consent? To admit such an interpretation of consent is to admit its use as a defense for rape. As I said in the dedicated post, consent must be actively and willing given; otherwise, it is mere acquiescence, supposition or nothing at all. Implied or implicit consent is a justification for a myriad of aggressions because it biases the justification in favour of the aggressor. National’s attempt to stifle criticism is a perfect example. As Lew has said, this was not about setting the record straight, it is about intimidating would-be critics of government policy.

    A serious can of worms can be opened on National here, but Labour appears to be incapable or unwilling to broach the obvious implications of Bennett’s initial (and inane) “implicit” or “implied” consent argument.

  14. jcuknz on July 29th, 2009 at 08:21

    If you live by the public purse then the public has a right to know what you get. To cut a training allowance to a potential nurse when the country is crying out for them is beaurocratic stupidity. After the Burgess case I think the left is calling the kettle black.

  15. Anita on July 29th, 2009 at 08:32

    jcuknz,

    Are you saying that if someone is receiving counselling for the effects of rape part paid for by ACC then the public has a right to know?

  16. Lew on July 29th, 2009 at 09:33

    Pablo, I’ve been ruminating on that argument but hadn’t been able to frame it quite right. Thank you for doing so.

    jcuknz, you can (try to) argue a case that all information about people receiving support from the state should be in the public sphere, but that doesn’t change the fact that in current law it is not so. And you might also want to consider the further implications of all such information being publicly available in a free society.

    L

  17. Kiwipolitico » Blog Archive » Uncitizens on July 29th, 2009 at 12:21

    A lot of self-described liberals or libertarians are arguing that the extent of peoples’ membership in society should be determined by their economic contribution to it, and a few, ignorant of reality, are even arguing that their membership in society is determined by their economic contribution. [...]

  18. lyndon on July 29th, 2009 at 12:52

    The only examples of implied consent on the advice page (now at http://74.125.155.132/search?q=cache%3Ahttp%3A%2F%2Fwww.privacy.org.nz%2Fchecklist-for-ministers-and-departmental-officials%2F&sourceid=navclient-ff&ie=UTF-8&rlz=1B3GGGL_en___NZ231, speculation at http://www.scoop.co.nz/stories/HL0907/S00319.htm) are of the form “I challenge the Minister to explain why I haven’t been given x”.

  19. lyndon on July 29th, 2009 at 13:09

    sorry that first link was the old version…

    It’s now at http://www.privacy.org.nz/checklist-for-ministers-and-departmental-officials-2/

    YOu’d think I’d’ve noticed that.

  20. jcuknz on July 31st, 2009 at 09:32

    LEW … It may or may not be current law, I don’t know, I suspect the interpretation of the law in this case depends on your political position. But as I understand that does not prohibit me from disagreeing with the law in theoretical terms. I disagree with several laws but that doesn’t stop me comforming to them.

    As someboody who like these women lives from the public purse I am well aware that what I get is public knowledge and if I selectively quote what I get to make a political point then I deserve to be roasted in return. Though the roaster should get it right, be dammed careful they do, if one of the women is to be believed.

    For the record I frequently attacked dole bashers or beneficiary bashers in my local press, before blogs were invented.

    That I may echo some, or they echo me, simply helps to prove adage that great minds think alike. It is an easy ‘put-down’ which ignores the point that there is very little truely original thinking and most of us are regurgitating sub conciously or consciously what we have heard and read previously.

  21. jcuknz on July 31st, 2009 at 10:05

    Are you saying that if someone is receiving counselling for the effects of rape part paid for by ACC then the public has a right to know?

    I’m really not sure … I think not … it depends on the situation … it was the apparent mis-representation of the situation that justified the response tht started this thread. To me I think it is a question of decency of behaviour to the woman in question and does the inquirer have a need to know. I am aware of one blog where a woman tells all that she was raped, whereas others obviously prefer to keep it secret.

    I think our society is absurdly pre-occupied with privacy, from being a disconnected mass instead of the small village group. It seems to be a convienient excuse/ blocking tactic when common sense would indicate the information should be released. A symptom of protection for my back in case something goes wrong, it is easier to do nothing.

  22. Lew on July 31st, 2009 at 10:23

    jcuknz, it’s quite explicitly the case that beneficiaries in NZ have identical rights to privacy of their public information as other adults. These is no doubt about this point.

    What there is doubt about is whether Paula Bennett was justified in releasing the information for some other reason, most notably on the grounds that the women concerned put the information into the public sphere in the first place. This is the matter on which the Privacy Commissioner will decide.

    As to your rape example – if you don’t see the difference between a victim willingly releasing information for her own reasons and a government department releasing it without her consent, then I really don’t know what to say.

    L

  23. jcuknz on August 1st, 2009 at 11:22

    I see a very great difference. Also a huge difference between payments and mis-fortune. A difference based on decent treatment of a person in their mis-fortune compared to information which is/should be public knowledge to balance the nonsense from petty dole/beneficiary bludgers.

    I’m happy that the Minister is looking further into the situation becuase the country needs nurses, and nurse aides to support them, but that is another subject.

  24. Anita on August 1st, 2009 at 12:24

    jcuknz,

    Sam speaks out publicly about the fact that ACC payments for counselling do not cover the full cost of each counselling session and victims of crime like Sam are left to scrape together the difference. What information should Nick Smith be able to release about Sam’s circumstances? Should that include that Sam, who was sexually abused by a female caregiver when he was a child, insists on seeing a male counsellor, and in his small town there is only one appropriately qualified male counsellor and his rates are higher than average?

    Chris is on the sickness benefit and speaks out publicly about the fact MSD won’t help with the high transport costs of getting to specialist appointments. What information should Paula Bennett be able to release about Chris? Should that include the fact that since Chris’ last psychotic episode, in which she threatened to stab her nieces and nephew, she has moved out of her sister’s home near the specialist and back to her parents who live in a semi-rural area with no public transport?

    Moana, who has a full time job, speaks to the select committee considering leave provisions about the hardship that compulsory christmas closedowns cause non-custodial parents and talks about her employer requiring a three week closedown. What information should Moana’s employer be able to release? Should that include the fact that Moana’s leave situation is atypical in that workplace and is due her taking extended leave earlier in the year to attend a residential alcohol programme and using annual leave to have supervised contact with her children whose father moved them out of town when her violence and drinking became dangerous?

    Sam, Chris and Moana should feel safe speaking publicly about those issues of government policy. None are lying, none are misrepresenting their own situation, each is raising a genuine issue of policy. For each the disclosure of their personal circumstances could cause significant shame, damage to relationships and support networks, and provide a huge disincentive to speaking publicly.

    Being a democracy is about more than giving everyone a vote, it’s about allowing everyone a voice.

    Eek – this is huge! I’m going to make it a post all on its own :)

  25. [...] a vote, it’s about allowing everyone a voice. [This post was originally a comment in reply to jcuknz in this thread.] Tags: Democracy, Participation, Paula Bennett, Privacy Posted in An inclusive [...]

  26. jcuknz on August 2nd, 2009 at 08:35

    Anita …. It’s your blog so rave on, I have already made my point and largely agree with you.

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