Guidelines on a website are not advice
Posted 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.
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.