My personal comments are both in red and underlined
• Privacy Commissioner
- Te Mana Matapono Matatapu
6 April 2011
Paul Evans-McLeod
17 Minnie Place
Pukete
HAMILTON 3200
Dear Mr Evans-McLeod
Privacy Act Complaint: Paul Evans-McLeod and Telecom New Zealand Limited (Our Ref:C/22243)
I refer to previous correspondence concerning the Privacy Act complaint you have made about the actions of Telecom New Zealand Limited (“Telecom’).
I have now had a chance to review this file in full and consider the issues raised.
I am satisfied that in this case Telecom has interfered with your privacy by initially withholding some information from you without a proper basis.
However I am also satisfied that you have now been provided with the information you are entitled to. It is also my view that there is no evidence to demonstrate that Telecom has accessed emails which you had sent and received from your work computer while you were still an employee at Telecom. I note that even if Telecom had accessed these emails, I believe it would have been entitled to do so in reliance on its clear computer use policy.
Background
The background to this complaint is extensive and has been dealt with at length in previous correspondence, but briefly; during the course of an ongoing employment dispute between you and Telecom, you formed the view that Telecom management had read personal emails which you had sent to your friends and family from work.
You also sent emails to Telecom in early 2010 requesting that it provide you with access to personal information it held about you. You did not receive a response from Telecom to these requests.
The Privacy Act
There are two main aspects to your complaint. The first is in relation to your request for information from Telecom. The second is in relation to your concerns that Telecom had accessed your personal emails while you were at work.
Issue I — Telecom’s response to your request for inform at/on
This aspect of your complaint raises issues in terms of principle 6 of the Privacy Act. Principle 6 sets out that an individual is entitled to request access to the personal information which an agency holds about them. However, this is not an absolute right as the agency may withhold the requested information in reliance on one of the withholding grounds set out in sections 27-29 of the Privacy Act. This aspect of your complaint also raises issues in terms of part 6 of the Privacy Act which sets out the procedural requirements on agencies in terms of how they are required to respond to requests for information.
Initial Request to Telecom
You had initially sent an email request for information to Trish Keith, Bridget Dalzell, Michelle Young and Shaun Holt, although it was unclear exactly when this request was sent. You advised that as you did not receive a response to this initial request, you then sent a copy of the request to Tanya Bowers on 6 March 2010. You advised that you did not receive a response to this request.
As set out in Ms Thompson’s letter of 30 June 2010, Telecom has advised that it did not receive your initial request for information. Telecom had placed a block on your email address due to the content of previous emails you had sent to Telecom. Telecom noted that on 25 February 2010 it had written to you requesting that all future correspondence be directed to Simpson Grierson, the lawyers acting for Telecom in this matter.
As Telecom did not receive your initial request for information due to the fact that your email address had been blocked, I am satisfied it has not breached the Privacy Act by not responding to your initial request.
Request of 26 May 2010
You sent a fresh request for information to Telecom on 26 May 2010 asking for all of the information it held in relation to you.
On 4 June 2010 Telecom responded to your request of 26 May 2010 and advised that given the wide ranging nature of your request it would not be possible for Telecom to make a decision within the timeframe set out in section 40 of the Privacy Act. On this basis Telecom extended the time limit to respond to your request by a further 20 working days. This meant that Telecom was required to provide a response to you by 22 July 2010. I am satisfied that given the nature of your request, Telecom was entitled to seek an extension and has complied with its obligations under section 41 in informing you of this.
I note that you contacted our office on 20 July 2010 and confirmed that you had received documents from Telecom in response to your information request.
I am therefore satisfied that Telecom had met its procedural obligations under part 6 of the Act in terms of its response to your request of 26 May 2010.
Content of Telecom’s Response to 26 May 2010 Information Request
Although Telecom provided a number of documents in response to your request, it also withheld information from you under sections 29(1)(a), 29(1)(f) and 29(2)(b). For the reasons set out in Ms Thompson’s letters of 12 November 2010 and 25 March 2011, I am satisfied that Telecom is entitled to rely on these sections to withhold information from you.
I note that on a number of occasions since Telecom provided you with information in relation to your 26 May 2010 request, you have advised us that you believe there are additional documents which Telecom has not provided to you. We have sought comment from you regarding specific documents which you believe were outstanding and have provided you with Telecom’s responses in terms of why it considers it has already provided you with these documents, to the extent that they exist. As previously advised Telecom is entitled to refuse a request for information which does not exist under section 29(2)(b).
this portion refers to the letter that was supposedly written customer complaint by the handicap girl who said I was “condescending and rude” they are therefore admitting fraud in the disciplinary process
In response you have sent additional emails again requesting Telecom provide you with further documents which it has already said do not exist. I note your comments and acknowledge that you believe that Telecom should hold further information as you believe it would have been appropriate for them to record and retain this information as part of the employment process.
However, as Ms Thompson has previously advised you, in terms of the Privacy Act there is no obligation on agencies to have created or kept specific information. The Privacy Act is only able to look at whether the agency has provided you with the information it does hold at the time you made the request. Your concerns that Telecom has not generated information that you believe it should have as part of the employment process, is not something we are able to assist you with.
So telecom or any other agency can shred incriminating evidence thats not fair
I am satisfied that Telecom is entitled to withhold the remaining information it has withheld from you under the sections set out above.
However, there was one email which Telecom had initially withheld from you in its entirety which we were not satisfied that it could continue to withhold. I understand that on 24 March 2011 Telecom wrote to you and provided you with a copy of this email, with a small amount withheld under section 29(1)(a).
Because Telecom initially withheld this email in its entirety without a proper basis to do so, I consider that Telecom has interfered with your privacy under section 66(2)(a). However, I note that this is a minor interference and as Telecom has now released the information to you I do not consider that it warrants further action.
Ok so I have to get it 100% right /100% of the time but they don’t interesting
Issue 2— Access to personal emails
You also raised concerns with us that Telecom had collected information from personal emails which you had sent from your work email address. You believe that Telecom had accessed your emails based on the fact that it had sent an email to you dated 6 April 2009 which asked for you to confirm that Mr Nigel Dick was acting for you. Mr Dick was also copied into this email.
Concerns relating to the collection of personal information raise issues under principles 1-4 of the Act. These principles set out the obligations on agencies when they are collecting
personal information, including what information they are allowed to collect, who they can collect personal information from, what they should tell people when they are collecting personal information, and the manner in which they can collect this personal information.
As previously set out in Ms Thompson’s letter of 30 June 2010, Telecom advised that it did not collect any information from your work email in the way which you have alleged. Rather Telecom advised that Ms Daizell’s comments had been based on previous discussions with you along with email correspondence that you had sent to Telecom which you had copied Mr Dick into. You have been provided with a copy of the email Telecom had referred to in which you had included Mr Dick.
At no point did I advise Ms Dalzell in any discussion that Mr Dick was my lawyer, I was setting a trap, why would I there was no indication as to Mr Dick Status in emailed he was copied into so explain why Ms Dalzell emailed Mr Dick directly asking for confirmation he was my lawyer ????
Based on this, it was our view that there was insufficient evidence to demonstrate that Telecom collected information from personal emails which you had sent from your work email during your employment with Telecom.
In response you have provided us with further information, including emails showing that Telecom had accessed emails you had sent to and from your work email on 14 March 2009, 24 August 2009, 9 March 2009 and 11 March 2009. I note that these emails were accessed by Telecom on 26 August 2009, after your employment with Telecom had ceased.
Telecom has confirmed that it did not monitor your email during your employment, and has advised that the only time it accessed your emails was after you had alleged Telecom had breached confidentiality during the mediation process. Telecom has advised that your emails were accessed as part of an investigation into that allegation.
Interesting YEAH RIGHT so where did Ms Dalzell gain the impression that Mr Dick was my lawyer those emails predate the allegation
As previously noted by Ms Thompson, it was also our view that if Telecom had collected information from your work emails this did not raise issues in terms of principles 1-4 of the Act. This is due to the fact that Telecom has clear guidelines in place regarding the use of work emails and that as part of these guidelines Telecom notes that it may monitor and inspect its system at any time to ensure compliance with email guidelines. I am therefore satisfied that Telecom did not breach the Privacy Act by accessing emails sent and received from your work email address on this basis.
I note that in recent correspondence you have provided extracts from Telecom’s guidelines regarding monitoring emails. In particular you have noted that under the Privacy and Monitoring Section it sets out that Telecom reserves the right to monitor and inspect individual staff’s email activity for reasons including during a business crisis, if the employee is absent when information thought to be in the employee’s mailbox is required. The guideline also sets out that Telecom may monitor and inspect individual staff email activity under the direction of a body that has necessary authority. In the case that Telecom had monitored email usage during a business crisis, the guidelines say that the employee will be notified by EDS administration staff.
You have said that you were not notified that Telecom had accessed your emails, and have asked Telecom to provide comments regarding this. You have also asked Telecom to advise which body had authorised it to inspect your emails.
At no stage has Telecom advised that it had accessed your emails on this basis. The list included in Telecom’s guidelines sets out the circumstances under which it may access an individual staff member’s work emails.
I am satisfied that Telecom did not access your work emails in the way you had initially alleged. I am also satisfied that when Telecom did access your emails it was entitled to do so under the email guidelines it has in place. On this basis it is my view that Telecom has not breached the Privacy Act in relation to this aspect of your complaint.
Conclusion
For the reasons set out above I am satisfied that while Telecom has interfered with your privacy by withholding a small amount of information from you initially without a proper basis, I do not consider it has breached the Privacy Act in relation to any of the other concerns you have raised.
Where it is my final view that there has been an interference with privacy we have the discretion to refer the matter to the Director of Human Rights Proceedings who may take the case as a matter to the Human Rights Review Tribunal. There are a number of issues we must take into- account before making this decision. They include whether a significant issue of law is involved and the likely outcome in the Tribunal taking into account the outcome options available to it.
Having reviewed this file, I do not consider that it warrants referral to the Tribunal. This is on the basis that the amount of information which was improperly withheld from you was small and that this information has now been provided to you. I do not believe that you have suffered any harm from the withholding of this information that will warrant damages being awarded by the Tribunal.
However, you are free to take the matter as a case before the Human Rights Review
Tribunal yourself. If you wish to do so you should write to the Tribunals Unit, Ministry of
Justice, Private Bag 32001, Wellington, requesting the necessary application forms.
will be doing so at the conclusion of dealings with the ERA most definitely
As part of initiating proceedings in the Tribunal you would have to show the Tribunal that I have conducted an investigation into this complaint. I enclose a Certificate of Investigation that you should give to the Tribunal for this purpose.
Thank you for bringing this matter to my attention. The file relating to this complaint will now be closed.
Yours sincerely
Assistant Commissioner (Investigations)
End: Certificate of Investigation
Privacy Commissioner Ta Mana Matapono Matatapu
Certificate of Investigation
for Human Rights Review Tribunal
Complainant Paul Evans-McLeod (Our Ref: C122243)
Respondent Telecom New Zealand Limited
Matters investigated Mr Evans-McLeod raised concerns on the basis that he believed his former employer, Telecom, had monitored personal emails he had sent and received from his work email address during his employment.
-
Mr Evans-McLeod also requested Telecom provide him with a copy of all of the personal information it held in relation to him.
Principle(s) applied 1-4 and 6.
Commissioner’s opinion:
- application of principle(s)
- adverse consequences
- interference with privacy No breach of principles 1-4.
Breach of principle 6 in relation to one document which has now been provided to Mr Evans-McLeod.
N/A.
Interference with privacy. No referral.
~Wk~ Flahive
I Assistant Commissioner (Investigations)
Current Telecom participants
Bridgette Dalzell :current head of outsourced customer care at telecom New Zealand whom is Michelle Young's direct report at time of incident
Michelle Young :call centre manager Hamilton call centre, whom is Shaun Hoults direct report at time of incidents
Shaun Hoult: team manager weekend team Sat-Tues Hamilton
Iain Galloway HR representative for in Hamilton
Hannah Sullivan HR representative head office
Date:
No comments:
Post a Comment