Abuse victims win against Govt agencies denying them private files

A High Court judge has told government agencies they can’t use the Privacy Act or lower court rules to bar survivors of abuse in care from accessing their own personal files.
And, noting that the Crown had changed its position on the issue several times, the judge said survivors “cannot be reasonably expected to have confidence in the Crown’s word that it will abide by the decision of the court” unless he made a formal order.
The judgment comes weeks after the Royal Commission into abuse in state care found not only decades of abuse, including torture, of children and young people but also that the Crown had then acted legally to stop them taking court actions.
The Commission declared; “Significant resources have been used to deny survivors their voice and to defend the indefensible. This must stop.”
Its report found the state had attempted to cover up the abuse for decades.
“Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations.”
In this case, public servants and Crown lawyers had stopped victims seeing the official records of their incarceration or time in state care, citing privacy considerations and the fact cases had been before the courts and would need those courts to authorise release.
Two abuse survivors challenged the state’s legal tactics to the High Court and Justice Matthew Palmer found the use of the privacy law and court rules to deny access had been wrong.
He made a declaration to that effect, meaning survivors now have the right to obtain their files unless privacy provisions about a third party’s personal information could be breached or the release could be deemed to harm their own mental health.
Survivors had argued they needed such a declaration because they had little faith in the Crown abiding by a decision without it.
“History does not reflect kindly on the Crown in these cases” Justice Palmer’s judgment quoted survivors’ lawyer Sonja Cooper’s argument.
“It is not reasonable to expect claimants who have been abused in state care to trust that the Crown, which has changed its position several times in relation to this issue, will comply in good faith without a court declaration.”
Even the Crown’s lawyer, Kerrin Eckersley, is cited by Justice Palmer as having acknowledged the concern while arguing against a formal order from the court. “The Crown will abide the decision of the court … though the Crown understands why the applicants would not have confidence in that.”
The two unnamed plaintiffs in the case have either filed or intend to file proceedings against the state for abuse suffered in state care.
But the Ministry of Social Development had withheld or redacted parts of their personal records saying “reports and plans ordered by and furnished to courts need to be requested from the courts.” 
That would have forced abuse victims to go to either District Court or Family Court judges around the country seeking orders that they could access their own information.
Justice Palmer found that the Privacy Act provisions and court rules did not deny the survivors their rights to access their personal information.
“The government agencies are bound by the Privacy Acts to respond to those persons’ requests. Unless a court has ordered that specific personal information not be provided to the person concerned, or another exception in the Privacy Act applies, the agencies must provide the information to the person concerned.”
Cooper told the court the two plaintiffs were representative of a group of individuals alleging they suffered abuse in state care.
They were real people, bewildered about decisions over their care.  Access to their records was “extraordinarily important to helping them understand what happened to them.”
But from 2015, the Ministry of Social Development told the victims that once documents had been filed in the courts during their cases in the past, they “were the property of the court and it was inappropriate to release them.”
Cooper said after the judgment was release on Tuesday: “Cooper Legal had tried to work with MSD and Oranga Tamariki to ensure we could agree to a sensible way forward for survivors who are seeking redress from the state.
 “Unfortunately, this got us nowhere. In the end, we had no choice but to ask the court to tell MSD and OT what their legal obligations were.
 “The judgment was vindicating for Cooper Legal and survivors. Justice Palmer recognised the negative impact on survivors’ ability to obtain redress because the state continually changed its position on what records a survivor was entitled to access,” she said.
 “It is important to remember the records we are taking about are about survivors themselves and are being used by MSD and OT to assess a survivor’s application for redress.
 “We are glad that the High Court recognised that it is unfair and a breach of natural justice to allow the state to access these records, but not the person who the records are about.”
Cooper said the Royal Commission had recommended a change to the state’s stance on information sharing.
“If the Government wants to regain survivors’ trust, it should start by implementing the Royal Commission’s recommendations, instead doing the complete opposite and fighting survivors in the High Court.”