Decision No. 10 /02
Reference No. HRRT 29/01
BETWEEN ROBERT FRANCIS
AND HER MAJESTY'S
ON BEHALF OF THE
BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL
R D C Hindle ‑ Chairperson
G Cook ‑ Member
P McDonald ‑ Member
13 June 2002 (Wellington)
1 July 2002 (Auckland)
Mr Plumtree ‑ plaintiff
Ms M Laracy for defendant
Ms M Donovan for Privacy Commissioner
Mr Plumtree joined the New Zealand Defence
Force ('the army') in March 1964. His official service history shows that he
left the army in 1968. During that time, he served in Vietnam. He is entitled
to the Vietnam Medal and the Vietnam Campaign Medal.
2. Mr Plumtree has complaints about the way he was treated by the army while he was engaged in it. For example, he gave evidence that:
(a) He did not receive proper basic training. His statement of service shows that he attended basic recruits’ training course number 27 from 19 March 1964 to 28 May 1964. However on 4 April 1964 he was admitted to the army hospital at Waiouru with a dislocated right elbow following an accident that occurred while he was on leave. He was discharged on 10 April 1964 but he still had only limited movement in his arm. It seems that as a result he was transferred to a non‑active training course. His Unit Personal Record Card shows that he was “deemed” to have qualified on a basic recruits’ course. In evidence Mr Plumtree said that, as a result of the deficiency in his basic training, by the time he came to serve in Vietnam he did not know how to fire the type of pistol with which he was issued (and which he said he had to use) in Vietnam.
(b) Mr Plumtree said that he was paraded through all of Northland towns as far north as Kaitaia, he was running down each main street being pursued by others firing blanks, then falling down pretend shot dead. He said he believed that sort of “physiological” training was cruel and that not long afterwards he was required to “...function with almost no support at all, more often than not alone unarmed.” In support of these allegations Mr Plumtree produced newspaper clippings dating from August 1966 which described a mock battle performed by the army as a demonstration in Kaikohe including the report that “... Kaikohe’s Raihara St. ‑ Broadway intersection was turned into a battleground on Tuesday afternoon ‑ grenades, rifle and submachine gun fire shattered the quiet day as Viet Cong guerrillas and members of the No. 1 Transport Company exchanged shots. Of course the ‘goodies’ won the (mock) battle and the Viet Cong, who had done their best to ambush a truck, were smoked out by thunder‑flash grenades and beat a hasty retreat down Raihara Street dragging their wounded with them...”
(c) At various points in his evidence Mr Plumtree
said that he was ordered by an officer to partner a lady to a social function
in Taumarunui. Later he spoke of the army arranging a sweetheart to write home
to, and said that “... members of the force also assisted an arrangement Of marriage. That flawed legal Family Court
Proceedings occurred here in
New Zealand, those karmas across the Tasman, and [he] has now also been deprived of due process according
to law, by members of the Federal Judiciary in Australia ‑.
3. Mr Plumtree said the
army ill‑treated him cruelly throughout his service. He felt that the
army had failed in what he saw as its legal and moral obligations to provide him with the support of comrades‑in‑arms
and proper training. He said that he has never actually been discharged from
the army, and that he ought to be discharged.
4. The army did not
accept any of these allegations, but it did not address them in any detail in
the evidence because it was submitted that they are all matters that are
outside the jurisdiction of this Tribunal. We agree. Whatever the rights and
wrongs of these aspects of Mr Plumtree’s allegations may be, they are not
things in respect of which this Tribunal has any power to intervene.
5. To record Mr Plumtree’s evidence in this summary way will, however, give some sense of the depth of his feeling of victimisation caused by the way in which he sees himself as having been treated by the army. He said that since his departure from the army he has led an unsettled life. He wanted us to know that he has had psychiatric assessment and psychological counselling, including counselling from the Vietnam Veterans’ Counselling Service in Adelaide. Mr Plumtree spoke of matrimonial and family problems that he has suffered and which he plainly sees as having had their genesis in large measure in the way he was treated by the army.
6. Mr Plumtree has taken his complaints variously
to the United Nations, the New Zealand Ombudsman and the Privacy Commissioner
in New Zealand. A particular manifestation of Mr Plumtree’s concerns over the
years has been a search for his army records, and his efforts to have certain
of the records he has had access to corrected.
7. It will be necessary
to deal with the chronology of his requests and the army’s responses later in
this decision, but for present purposes it suffices to note that there is
evidence of correspondence between Mr Plumtree and the army as early as 1984.
Subsequently the Privacy Commissioner became involved. By letter dated 16
October 1998 the Privacy Commissioner informed Mr Plumtree that he had decided
to exercise his discretion under section 71(2) of the Privacy Act 1993 (‘the
Act’) to discontinue the investigation of the complaint.
8. It is difficult to
trace the exact course of the correspondence because the bundle provided for
the hearing was incomplete. It seems that the matter reactivated some time
early in 2001. However on 24 July 2001 the Privacy Commissioner repeated that
he had decided to discontinue his investigation of the complaints. Mr Plumtree
was notified of the possibility of commencing proceedings in this Tribunal.
B THE CONDUCT OF THE CASE
9. This case was commenced by a notice of intention to bring proceedings dated 27 July 2001. At that time Mr Plumtree sought orders for disclosure of information, and orders for correction.
10. During the pre‑hearing phase there was a meeting
between Mr Plumtree and representatives of the army in Rotorua in September
2001. The meeting did not resolve matters but made some progress. Mr Plumtree
was shown copies of certain records that had been located. Mr Plumtree said
that he was shown four ‘new’ documents (i.e., ones he had not seen before),
although subsequently copies of only three documents were sent to him (for
convenience we refer to this alleged fourth document as ‘the missing
document’). The army said that Mr Plumtree was mistaken, and that he was sent
copies of all of the documents that were shown to him that day, and which he
had not previously seen or had copies of.
11. As a result of a directions conference by telephone on 25
February 2002 Mr Plumtree was required to particularise his claim and to
indicate, preferably by schedule, the documents he was then still seeking;
those in respect of which he required some amendment and those in respect of
which he said production was delayed.
12. Mr Plumtree then filed a number of documents although regrettably none of them could be described as uncomplicated. The main bundle of documents, for example, was not presented in any organised way. It contained several copies of some documents and yet omitted altogether other documents that Mr Plumtree obviously regarded as important at the hearing. Documents were fragmented within the bundle. For example, Mr Plumtree’s Unit Personal Record Card is a two‑sided card with information on both sides. The front side was at page 95 of the bundle and the reverse side was at page 89. The scope for confusion was compounded by the fact that the documents themselves contain acronyms and abbreviations which may be commonplace in the army but which were not always easy for the uninitiated to follow.
13. There was a further pre‑hearing conference by
telephone on 27 May 2002. At that time Mr Plumtree confirmed that a document he
had filed in late February 2002 entitled ‘Schedule of Documents in Dispute’
would be a convenient summary of the matters he wanted the Tribunal to deal
with at the hearing. He also said that he would refer to the material in the
bound volumes he had delivered to the Tribunal, an affidavit sworn by him on 21
March 2002 and to the documents attached to his letter of 23 March 2002 to the
Tribunal. Mr Plumtree accepted that (aside from the missing document) he had by
then received all of the information he had been asking the army to provide.
minute of the 27 May 2002 conference also records the written evidence and
submissions that would be presented by the army at the hearing.
15. The hearing commenced in Wellington at 11.30 am on 13 June 2002. Mr Plumtree’s case occupied most of the day. The army opened its case late in the afternoon. It soon became clear that it would not be possible to complete the evidence before the end of the day. The hearing was adjourned to be
resumed in Auckland as soon as practicable.
16. Before the hearing resumed Mr Plumtree wrote with an objection to the evidence that had been given by Lt. Col. Taylor. We dealt with that objection immediately the hearing resumed in Auckland on 1 July 2002. We were not persuaded that the procedure had been unfair to Mr Plumtree, particularly having regard to the time that had been taken to hear his evidence and deal with the topics covered by him. We were not satisfied that anything Lt. Col. Taylor said had strayed beyond the realms of relevance in any material way.
17. At the
end of the hearing on 1 July 2002 the Privacy Commissioner presented a
comprehensive written submission which was summarised by Ms Donovan. The submission was critical of the army’s
conduct in a number of respects.
Nothing had been filed in advance of the hearing that might have
foreshadowed for the army the attitude likely to be taken by the Privacy
Commissioner. Indeed the Privacy Commissioner had earlier exercised the
discretion under section 71(2) of the Act to discontinue his investigation of
Mr Plumtree’s complaints. He had also exercised the discretion under section 77
of the Act not to refer the matter to the Proceedings Commissioner, but rather
to let Mr Plumtree bring the proceedings by himself.
18. The submission by the Privacy Commissioner
took the army by surprise. At Ms Laracy’s request we allowed the army to file a
written submission in reply to that filed by the Privacy Commission at the
hearing. We also allowed both the Privacy Commissioner and Mr Plumtree an
opportunity to respond to the further submissions by the army.
19. Further submissions were subsequently
received from all of the parties. Although not all of the material received
from Mr Plumtree was limited to matters of reply we have considered everything
that was received, save only for a letter from a Mr Robinson which was in the
nature of a character reference for Mr Plumtree.
c THE RELEVANT PRIVACY ISSUES
20. The only
aspects of Mr Plumtree’s complaints that engage the jurisdiction of the
Tribunal are those which relate to the application of Privacy Principles 6 and
21. The relevant part of Principle 6 states:
“(1) Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled ‑
(a) To obtain from the agency confirmation of whether or not the agency holds such personal information; and
(b) To have access to that information
The Principle also provides that where access is given then the individual “...shall be advised that, under Principle 7, the individual may request the correction of that information.” The Principle is generally subject to Part IV (Good Reasons for Refusing Access to Personal Information) and Part V (Procedural Provision Relating to Access to and Correction of Personal Information) of the Act.
relevant provisions of Principle 7 entitle an individual in respect of whom an
agency holds personal information to request that the agency correct it, and to
request that there be attached to the information a statement of any correction
sought but not made. The agency’s obligation is to take such steps to correct
the information as are reasonable in the circumstances to ensure that the
information is accurate, up to date, complete and not misleading having regard
to the purposes for which it can lawfully be used. If the agency is not willing
to correct information then under Principle 7(3) the individual can supply a
statement of the correction sought and the agency must take such steps as are
reasonable to attach that statement to the information.
23. There is
no doubt that the information held by the army about Mr Plumtree is personal
information, and that the army is an agency to which the Act applies. The army did not argue that any of the
information held by it about Mr Plumtree should be withheld from him for any
reason. As has been noted, before the hearing Mr Plumtree accepted that (apart
from the missing document) he had received all of the information held about
him by the army and which he had been asking the army to provide.
24. The real issues therefore have to do with the time it has taken to provide
information to Mr Plumtree, and the correction of information that he has had access to.
25. It is
convenient to begin by setting out Mr Plumtree’s requests for access to
information and the army’s responses (the chronology is incomplete because not all
documents were put in the evidence).
26. On 3
April 1984 the Ministry of Defence wrote to Mr Plumtree enclosing a statement
of his New Zealand army service. It is apparent from the letter that Mr
Plumtree had written on 27 March 1984, but since we do not have that letter we
do not know what the terms of Mr Plumtree’s request at that time were.
27. It seems
that in the years following 1984 Mr Plumtree pursued his concerns through the
United Nations and elsewhere, because the next evidence of a request from him
to the army for information is contained in a letter written by the army on 27
May 1992. That refers to a letter from Mr Plumtree dated 11 May 1992 which
again we were not given a copy of. However the letter from the army stated that
it enclosed a copy of Mr Plumtree’s personal file. together with a statement of
service and an open letter verifying that Mr Plumtree had Active Service in
28. At the
hearing the army accepted that the letter in 1992 would not have enclosed
copies of materials in what was called the ‘mobilisation pack’ which was held
on the army file. This is significant, since amongst the documents in the
mobilisation pack was Mr Plumtree’s Certificate of Vaccination which was a
particular focus of his concern. On the other hand the army says that, save
only for the materials in the mobilisation pack and medical records, there is
no reason to suppose that everything on Mr Plumtree’s personal file held by the
army was not sent to him in 1992.
29. There is
evidence of correspondence between Mr Plumtree and the office of ‘the Privacy
Commissioner in 1994 concerning efforts made by Mr Plumtree to obtain
information from the Department of Social Welfare. That request does not appear
to have any direct relevance in this case.
30. On 13 May
1994 Mr Plumtree wrote to the army acknowledging receipt of the materials in
1992 but saying that the army had not included copies of his medical records.
He wrote again on 24 May to express some of his concerns about the way he saw
himself as having been treated by the army. Medical records were provided by
the army undercover of a letter dated 25 May 1994.
31. The next
episode in the sequence of correspondence that was put in evidence began on 4
August 1997 when Mr Plumtree wrote to Col. Seymour. That letter did not ask
that information be provided, although Mr Plumtree did present Col. Seymour
with some of the complaints noted at the beginning of this decision. On 11
August 1997 Col. Seymour responded. His letter suggests that at or about that
time Mr Plumtree had also written to the Governor General of New Zealand
concerning his complaints. Col. Seymour’s letter indicated that the army had
provided advice to the Government about Mr Plumtree’s letter to the Governor
General “... to which you will receive a reply, if you have not already done
so”. The letter said that the army had not changed its view that Mr Plumtree
had been properly discharged.
letter was followed by a letter from Mr Plumtree dated 3 November 1997 which
referred to the Act and asked for a copy of all his army records. In
particular, Mr Plumtree said that reenlistment documents had been missing from
the materials forwarded to him in 1992 and 1994. (Mr Plumtree’s file includes
documents suggesting reengagement in October/November 1966 but nothing has ever
been produced recording the reenlistment in early 1966 which is the subject of
Mr Plumtree’s request in this letter) Mr Plumtree’s letter describes itself as
his third attempt at obtaining all of his records.
33. Mr Plumtree also wrote to the Privacy
Commissioner on 3 November 1997. The letter refers to a document written to the
Wellington office of the Privacy Commission on 19 September 1997 “... regarding
the fabrication of my Army records and other matters to this date I have not
received a reply”.
34. There is a significant letter in this chain
which is dated 26 November 1997. The army wrote to Mr Plumtree, in response to
his letter of 3 November 1997. The focus of the army’s letter had to do with Mr
Plumtree’s allegation that he re‑enlisted in early 1966 (we note that the
words enlistment, reenlistment and engagement, reengagement were used
interchangeably by the parties). The claims were investigated and a number of
points were made by the army all of which reflect the material that was on Mr
Plumtree’s personal file. The letter did, however, contain a sentence which
later became an important part of Mr Plumtree’s case, namely a statement that
Mr Plumtree was emplaned to travel to Vietnam on 11 January 1967. The letter
recorded that a complete copy of Mr Plumtree’s personal file had been sent on
27 May 1992 and that a complete copy of Mr Plumtree’s medical records had been
sent to him on 25 May 1994. The letter recorded that the personal file was made
available to the office of the New Zealand Ombudsman in August 1994 along with
the medical records. The letter concluded, “... your recent enquiries regarding
the procedural correctness of your discharge from the army have been
exhaustively researched and answered. Your enquiries have been answered in the
form of responses from the Army, the New Zealand Defence Force, the Minister of
Defence, and the Office of the Governor General ... I hope that this reply has
answered all of your concerns, therefore concluding Army’s correspondence with
you regarding your military service.”
35. The next
letter is dated 5 October 1998. It was written on behalf of the Privacy
Commissioner to Mr Plumtree in response to a letter he had written in September
1998 (we do not have a copy of this letter). Amongst other the 5 October letter
advised Mr Plumtree as to the effect of Principle 7 of the Act, but noted that
“... you have not requested that the New Zealand Defence Force correct your
Army records, including your vaccination records and therefore, the
Commissioner is unable to investigate this aspect of your complaint.”
36. In view
of the submissions subsequently made by the Privacy Commissioner at the
hearing, the next letter is of some importance and needs to be described in
detail. On 8 October 1998 Mr Plumtree wrote to Col. Seymour. His letter is
headed with reference to Principles 6 and 7 of the Act. Mr Plumtree began the
letter by explaining his points of disagreement with army records. The letter
sets out his recollection of what occurred and complains that what appears to
be his signature on forms of reengagement dated in October and November 1966
are both forgeries, Mr Plumtree noted the army’s concession concerning what he
believed to be the correct date on which he was emplaned for service in South
Vietnam. He then referred to the army’s suggestion that he applied to have his
reengagement reduced while he was in Vietnam. With specific reference to
Principle 6 of the Act, he asked the army to supply the documents referred to. The
letter then concluded in the following terms:
request under Principle 6 of the Privacy Act of 1993, I seek full documentation from the
Defence Force pertaining to the alleged return from Vietnam medical board
alleged by Minister Max Bradford to have occurred on the 18’h day of April
request under Principle 7 of the Privacy Act of 1993, 1 request my vaccination records be
corrected. That all vaccinations received while in service be correctly listed
and shown properly.
request under Principle 6 of the Privacy Act of 1993, 1 request the Defence Force copy to
me proper documentation setting out all vaccinations received for service in
Apparently something was sent to the Privacy Commissioner at or about that time
because there is in the evidence a letter dated 16 October 1998 from the
Privacy Commissioner. In that letter the Privacy Commissioner took the view
that there were no matters requiring investigation by his office at the time,
and recorded his decision to exercise his discretion under s 71(2) of the Act
to discontinue the investigation of Mr Plumtree’s complaint.
38. The army’s response to Mr Plumtree’s letter of 8 October 1998 was dated 19 October 1998. It was signed by Col. Seymour, and was in the following terms:
acknowledge your letter dated 8 October 1998 concerning your release from the
New Zealand Army. Our records show that we have in the past sent you full
copies of both your personal army file and medical records. There is nothing we
can add to them ... further, there is nothing more that we can do for you on
the issues your raise. I note that the Minister of Defence advises you, in a
letter dated 15 October 1998, of a similar response. Just as the Minister of
Defence considers the matter closed, so do I.”
39. A copy of
this letter was sent to the Privacy Commissioner. On 24 December 1998 the Privacy Commissioner wrote to Mr
Plumtree. That letter is concerned with Mr Plumtree’s allegation that the
records held by the army were not
honest or truthful, and that they contained forgeries. The letter records that
the army had advised the Privacy Commissioner that a copy of all medical
records was provided to Mr Plumtree including his original vaccination records,
and that the Privacy Commissioner’s understanding was that Mr Plumtree received
his personal files in 1992. For reasons set out in the letter, the Privacy
Commissioner thought it unlikely that he would consider that an investigation
concerning refusal by the army to correct the vaccination records to be
appropriate. The Privacy Commissioner did, however, draw attention to Principle
7 and the possibility that the army might attach a statement of correction to
the file that it held. The letter indicates that the Commissioner would
consider commencing an investigation if the army were not to attach such a
statement, or if it were to fail to respond to Mr Plumtree’s request.
40. The evidence does not disclose what took place between December 1998 and June 2001. It may be that Mr Plumtree had again taken his concerns up with the Ombudsman at that time. On 5 June 200 1, however, Mr Plumtree wrote to Col Seymour saying that he had again complained to the Privacy Commissioner regarding his earlier request that his army vaccination records be corrected. His letter includes the following:
I am making a second request under Principle 6 and 7 of the Privacy Act of New
Zealand. Requesting A7 Army Defence Force for a statement of correction to be
attached to my army personnel file. I ask that army fully investigates unit 161
BTY Papakura camp vaccination records; particularly vaccination records
February/March 1966, and pleases also the earlier Papakura camp hospital
vaccination records ... I request under Principle 6 and 7 of the Privacy Act of
New Zealand, that I be accorded a full and proper record of all vaccinations
received thus far throughout my service.”
41. The Privacy Commissioner wrote to Mr Plumtree on 15 June 2001 in terms:
“As you may recall, this matter has been the subject of a previous investigation by the Privacy Commissioner. You made a complaint in 1997 concerning a number of matters including that documents you had received from the Army were inaccurate. You advised the Commissioner that information held about you by the Army was untruthful and dishonest. Deborah Marshall, Manager investigations at the time, advised you that the Army had informed the Privacy Commissioner you had received all the information it holds about you, including your vaccination records. Mrs. Marshall advised you that should you consider the in information held about you by the Army to be inaccurate, you may make a request to the Army for a statement of correction to be attached to the file the Army holds about you.
“You do not appear to have raised any new matters in your recent correspondence to the Privacy Commissioner. Neither have you provided information concerning making a request to the Army for your vaccination records to be corrected.
the circumstances, there does not appear to be a matter which the Privacy
Commissioner may investigate. The file concerning your complaint will therefore
letter was followed by a further letter on 24 July 2001 in which the Privacy
Commissioner formally recorded his decision to discontinue the investigation of
the complaint pursuant to the discretion granted him under s 71(2) of the Act.
The Privacy Commissioner indicated that he had also decided not to refer the
matter to the Proceedings Commissioner, so that Mr Plumtree was free to bring
the present proceedings by himself.
proceeding was then commenced by Mr Plumtree on 27 July 2001. The claim was
received by the army on or about 10 August 2001. The date is significant
because it is at about that time that Lt. Col. Taylor assumed responsibility
for dealing with the matter on behalf of the army. It needs to be recorded
that, whatever criticisms may be levelled at the army, no criticism whatsoever
can be made of Lt. Col. Taylor’s efforts in dealing with this file. Indeed, but for Lt. Col. Taylor’s careful
and conscientious review of the file, and his willingness to ‘start again’,
such information as has subsequently come to light might never have been found.
September 2001 there was a meeting in Rotorua attended by Mr Plumtree and a
barrister, Mr Birks, as well as by Ms Laracy and Lt. Col. Taylor for the army.
Prior. to attending that meeting Lt.. Col. Taylor perused all of the personal
files carefully. In doing so, he opened the mobilisation pack on the file. The
mobilisation pack is an envelope, the purpose of which is to contain documents
and administrative items required by a service member for deployment on
operations. In Mr Plumtree’s mobilisation pack Lt. Col. Taylor found his
identity tags, an identity card, spare identity photographs, his pay book and
his Certificate of Vaccination.
45. At the hearing the army accepted that the mobilisation pack had not been opened before then, and that Mr Plumtree had never been given any of the information contained within it before it was opened by Lt. Col. Taylor.
46. There was
some dispute about what was shown to Mr Plumtree at the Rotorua meeting. The
parties agree that he was at least shown his Certificate of Vaccination (which
he would not have seen before then) as well as copies of two letters. The first
is dated 9 March 1967 and appears to be signed by Mr Plumtree. In it he asks to
have his engagement reduced by three months. Mr Plumtree said that he had never
seen the document before, and that the signature purporting to be his was a
forgery. In contrast the army’s position was that there is no reason to believe
that the signature is forged, and there is no reason to suppose that a copy of
the letter was not sent along with all of the other items on Mr Plumtree’s
personal file in 1992.
second letter is dated 11 March 1967 and appears to be signed by Lt. Col.
Smith. It also deals with Mr Plumtree’s reengagement. Mr Plumtree said that he
had never seen this document before the meeting in Rotorua. The army’s position
was, again, that there was no reason to suppose that it had not been copied
with all of the other material on Mr Plumtree’s personal file in 1992.
Plumtree said that he was also shown a fourth document in Rotorua. He said the
document was one which bore the signature of Lt. Col. Smith as well as one
purporting to be his (Mr Plumtree’s) signature. Lt. Col. Taylor, on the other
hand, gave evidence that he had no note or recollection of either having seen
such a document or having shown it to Mr Plumtree.
49. On 25 September 2001 Lt. Col. Taylor sent Mr Plumtree a copy of his Certificate of Vaccination. By letter dated 19 October 2001 he reported progress in respect of various other researches he had agreed to undertake, including research at National Archives, On 31 October 2001 Lt. Col. Taylor sent a further letter reporting on the researches together with further documents and extracts from documents that related to Mr Plumtree (but with references to other individuals deleted).
50. As will be apparent from the foregoing chronology, it was not until after this proceeding was commenced that the army first opened the mobilisation pack on Mr Plumtree’s file. It contained important information in relation to his vaccinations, which had been the subject of several of Mr Plumtree’s requests. We are bound to say that it seems remarkable that this envelope was not opened before September 2001, notwithstanding all of Mr Plumtree’s correspondence to the Ombudsmen, Ministers of the Crown and the Privacy Commissioner.
51. We were
shown the mobilisation pack during the course of the hearing.. It is a manila
envelope which is secured at the top with a pin. It was on Mr Plumtree’s
personal files. We have no doubt that the items contained within the
mobilisation pack were all readily capable of being retrieved by the army. The
army accepts this, and concedes that here has been a breach of Principle 6
because Mr Plumtree was not given access to his Certificate of Vaccination
prior to the meeting in September 2001 in Rotorua.
E ARE THE RECORDS ACCURATE?
52. It will be apparent from the chronology that there is disagreement between Mr Plumtree and the army as to the accuracy of the personal information held by the army about Mr Plumtree. We turn to deal with those issues. The purpose of the analysis is to compare the information held by the army about Mr Plumtree with the standard of accuracy set out in Principle 7(2):
“An agency that holds personal information shall, if so requested by the individual concerned, take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purposes for which the information may lawfully be used, the information is accurate, tip to date, complete and not misleading. “
53. All of
the information at issue was collected by the army over thirty years ago. It
was not suggested by Mr Plumtree or by the Privacy Commissioner that the
information has any particular use now save as an historical record of what
occurred. Mr Plumtree did not argue that the information might affect, or had
ever affected, any entitlement to any benefit he might otherwise have had.
Indeed it was not suggested that anyone save Mr Plumtree was concerned about
the accuracy of the information.
54. The army
did not press the point that, whatever the truth of Mr Plumtree’s complaints,
the information on its files nonetheless meets the standard required by
Principle 7(2) ‑ either because the circumstances do not now warrant any
steps to correct the information, or because the information is sufficiently
accurate having regard to any purpose for which it can now lawfully be used.
The point was made in a footnote to the written submission filed for the army,
but it was not urged upon us. We think the army was right to deal with the
issue in that way and to focus on the substance of the documents. But we agree
with the submission that Principle 7(2) does not require an agency to accede to
every request for correction. The Principle recognises that the obligation to
correct is to be assessed according to the use to which the information may
lawfully be put, and what is reasonable in the circumstances.
55. In the
present case, for example, one of Mr Plumtree’s requests for correction relates
to records of the date on which he boarded the flight that took him to
Singapore en route to service in Vietnam. Mr Plumtree says the date was 11
January 1967, the army records have the date as 22 January 1967. The assertion
of an error by Mr Plumtree does not in itself oblige the army to change its
records. It must also be obvious that, in the absence of any suggestion that
anything turns on the accuracy of the record, there is nothing in Principle
7(2) that would have obliged the army to conduct a full scale inquiry to
determine conclusively whether its records are right or wrong.
Principle 7(3) provides that:
“Where an agency that holds personal information is not willing to correct that information in accordance with a request by the individual concerned, the agency shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the information, in such a manner that it will always be read with the information, any statement provided by that individual of the correction sought.”
57. We return to deal with Principle 7(3) later in this decision. In the meantime we deal with Mr Plumtree’s argument in respect of the records under the following headings:
• Documents which contain what Mr Plumtree said were errors requiring correction;
Documents relating to Mr Plumtree’s service in Vietnam;
Documents which Mr Plumtree says contain forgeries of his signature;
The missing document.
58. We deal first with the documents which Mr
Plumtree says contain incorrect information, but in respect of which he has not
gone so far as to assert fabrication or forgery. The documents in this category
Mr Plumtree’s Certificate of Vaccination;
His Unit Personal Record Card.
respect to the Certificate of Vaccination, the document shows that three
vaccinations were administered in 1963. Mr Plumtree says that cannot be correct
since he did not join the army until March 1964.
relevant page of the certificate shows entries in respect of vaccinations on 5
May 1964 and 17 July 1964. There are then three records for vaccinations dated
1963, followed by further vaccinations shown as having been administered in
1965 and later. The signature of the physician who administered the vaccines in
1964, ‘1963’ and in March and April 1965 appears to be that of the same person.
61. Since the
date of Mr Plumtree’s first engagement in the army is not in issue we agree
with Mr Plumtree that, in the absence of any other explanation, the certificate
appears to be wrong in respect of vaccinations shown to have been administered
to the sequence of entries in the certificate suggests that the entry ‘1963’
was most likely a mistake by the person filling in the form. It was suggested
during the hearing that the information about vaccinations in 1963 might be
correct, and that it was obtained by the army after Mr Plumtree enlisted and
added to the certificate when provided ‑ thus explaining why it appears
out of chronological order. But that is no more than speculation. It was not
suggested that the files contain any record that the army physician was given
information from any other physician about earlier vaccinations. Nor is it
clear on what basis the official stamp of the physician was placed on the
certificate if he was not responsible for administering the vaccinations
question is then raised by the army as to exactly what should be done to
correct the certificate.
evidence Lt. Col. Taylor said that he was surprised to find the Certificate of
Vaccination when he opened the mobilisation pack because such certificates are
usually held by the individuals to whom they relate. In fact as we understood
the evidence these certificates belong to the individual (although we were not
asked to decide who owns the certificate, if that is controversial).
65. If it is
accepted that the certificate belongs to Mr Plumtree then in our ‑view it
should be returned to him forthwith and as is. He will then be in a position to
make such changes as he wants to make to it. If the army wishes to keep a copy
for its records, then that should be annotated in the appropriate place to show
that the date ‘1963’ should read ‘1964’. How that is done is up to the parties
to resolve in the first instance, but we would have thought a handwritten note
66. If after
further consideration it is agreed that the certificate belongs to the army, it
still seems to us that the correction could be made in handwriting on the
document itself. If the army wishes to include a separate note about the
circumstances in which the correction is made that is for it to decide. No
doubt the note would be attached to the Certificate of Vaccination.
written submissions the army expressed a reluctance to alter historical records
such as the certificate when instead something could be added to it. All we say is that the army has an
obligation under Principle 7(2) to ensure that the information in the
certificate is accurate. If there are any remaining issues about how the
document is to be corrected then memoranda may be filed.
68. The second document in respect of which Mr Plumtree says that there are errors is his Unit Personal Record Card. Mr Plumtree has three separate complaints about the document:
(a) The date of the medical in 1966: First, Mr Plumtree says that he cannot have had a medical examination on the 22 nd of November 1966 because the immediately preceding examination had taken place or, 11 8 March 1965. Since according to Mr Plumtree the army conducted medical examinations on a very strict yearly cycle, he believes his examination must have taken place in or about March 1966.
(b) ‘Fit for Everything’: Secondly, Mr Plumtree notes that he is shown as having been passed as ‘F/E’ (‘fit for everything’) at 22 November 1966. Amongst the files there is a record of a glucose test that was not received by the diagnostic laboratory service until 23 November 1966. Accordingly Mr Plumtree says that he cannot have been passed fit for everything since not all test results were to hand at that time.
(c) Vaccinations omitted from Unit Personal Record Card: Thirdly, Mr Plumtree says that the record of vaccinations shown on the document is incorrect. He had many more vaccinations than the three recorded in his Unit Personal Card.
69. Taking each in turn:
(a) The date of the medical in 1966: Mr Plumtree’s suggestion that he could not have been examined in November 1966 depends on his assertion of the fact, and his evidence that as a matter of practice in 1966 the army would not have omitted to do a check up strictly within one year of the last one he had in March 1965. For the army Lt. Col Taylor gave evidence that it was unlikely that army practice was as exact as Mr Plumtree said. Lt. Col Taylor was not in the army in 1966, but his expectation about what army practice might have been does find some corroboration in the fact that no records of a medical examination in March 1966 were found. What is clear is that if there had not been a medical examination in March 1966 then by November Mr Plumtree would have been due for one. At that time his actual departure for Vietnam was becoming imminent, and it is likely that there would have been a medical check up in anticipation of that.
Furthermore we note that Mr Plumtree’s case in this respect seemed hard to reconcile with what he had to say about the entry showing him fit for everything on 22 November 1966. In that respect he relied in part on a diagnostic laboratory form which showed him as having had a glucose test, the relevant specimen for which was received by the laboratory on 23 November 1966. Mr Plumtree urged upon us that it followed that since test results were still outstanding on 23 November 1966 he could not have been assessed as fit for everything on 22 November 1966. We deal with that below, but note that Mr Plumtree’s case in that respect drew its main support from the dates on the laboratory form. Although he later said that the dates on the laboratory form were wrong as well, it seems to us that if he was indeed. having glucose tests done in November 1966 then that tends to confirm the accuracy of the information about the timing of his medical examination in 1966.
For these reasons it has not been demonstrated to our satisfaction that there is anything inaccurate or misleading in the date recording Mr Plumtree’s medical examination on 22 November ‘1966 in his Unit Personal Record Card.
(b) “Fit for Everything”: Mr Plumtree argued that he could not have been fit for everything on 22 November 1966 since the laboratory form shows that his glucose test was not received or examined by the laboratory until the next day, 23 November 1966. This again gave rise to a difference of opinion between Mr Plumtree and Lt. Col Taylor about what the practice of recording medical examinations might have been in 1966. It must at least be possible that the Unit Personal Record Card was written up after the examinations, and once the results of tests were known. Given that the glucose test does not appear to have been abnormal, once that result was received it would have confirmed that (all else being equal) Mr Plumtree was in fact fit for everything on the day he was examined. Mr Plumtree did not at any stage allege that he was not fit for everything; as we understood his case his concern was only about the date shown on the record.
Mr Plumtree has not persuaded us that
there is anything that is inaccurate or misleading in his Unit Personal Record
Card insofar as it records the date on which Mr Plumtree was fit for
everything. If in fact it was a day or so later that the test results came back
to confirm what had in all other respects been a normal examination, that seems
to us to be immaterial.
(c) Vaccinations omitted from Unit Personal Record Card: The record of vaccinations contained in the Unit Personal Record Card is plainly wrong. Only five entries are shown. The Certificate of Vaccination demonstrates that while he was in the army Mr Plumtree was given a great many more than five vaccinations.
The army has accepted the omissions, and has offered to have a statement of correction attached to the Unit Personal Record Card to make it clear that it does not show every vaccination given to Mr Plumtree, and that a complete list is shown in the Certificate of Vaccination.
Again there may be an issue as to exactly
how the correction should be achieved. We would have thought that the relevant
spaces in the card could be filled in with the information that is available
from the Certificate of Vaccination. Alternatively it might be set out in a
separate sheet and attached to the card. Again we leave it to the parties to
resolve how the correction should be made, bearing mind the obligation to
ensure that the Unit Personal Record Card must be accurate, up to date,
complete, and not misleading. If the method of correction cannot be agreed
then, again, memoranda may be filed.
70. There are
a number of records which contain references to the date on which Mr Plumtree
was posted to active service, the date on which he left for the date on which
he left for Vietnam, and the date on which he returned to New Zealand: for
example, his Statement of Service ‑ Army Form 6A; his Record of Postings,
Transfers, Appointments, etc; his Service History and the typewritten Statement
of Service dated 3 April 1994 ‑ Form MD387. This list is not exhaustive.
71. In short summary, Mr Plumtree asserts that what occurred was as follows:
On 31 January 1966 he was posted from headquarters CRASC Fort Cautley to
161 Battery (Papakura Camp) for service in South Vietnam;
At some time in February 1966 he was asked to extend his engagement, and
did so at that time by signing a reengagement form covering a tour of duty plus
He was then given full vaccinations and ‘indoctrination’ for service in
The posting was to have been as a
gunner driver RNZASC with 161 Battery at Nui Dat, but not long after he
reengaged in early 1966 the posting was cancelled. He was re‑mustered
back as a lance corporal driver at HQ CRASC Fort Cautley on 1 April 1966;
Some time later in 1966, probably
after Labour Weekend, he returned from leave to Fort Cautley and was told that
he was being reposted to Vietnam, but that this time he would be posted to HQ
New Zealand V Force, Saigon;
On 11 January 1967 he signed a will
declaration, a copy of which is on the files. The date is significant, since Mr
Plumtree was adamant that he signed that declaration on the same day that he
was emplaned and left New Zealand for service in Vietnam;
Although he accepted that he returned
to New Zealand in early 1968, he said that at no stage had he applied for early
release from his overseas service.
72. In contrast, the army files record that:
Mr Plumtree’s first and only posting for active service in Vietnam did
not occur until 1967;
On 31 October 1966 Mr Plumtree signed a form of reengagement for regular
service agreeing to continue to serve in the army from 10 March 1967 until 9
June 1968 on the active list and thereafter on the reserve list until 9 March
1972. (This is one of the documents in respect of which Mr Plumtree says his
signature has been forged);
On 4 November 1966 the Adjutant‑General wrote referring to the
provisions of Army standing orders and noting that the form of reengagement
completed by Mr Plumtree was a note
at the end of the document asks that a new agreement be completed, upon receipt
of which the agreement dated 31 October 1966 would be cancelled;
Mr Plumtree was passed ‘fit for everything’ on 22 November 1966;
A new form of reengagement for regular service was signed on 10 November
1966 in which Mr Plumtree agreed that his current engagement be terminated
immediately, but that he would continue to serve in the regular force from 11
November 1966 until 20 July 1968 on the active list and thereafter on the reserve
list until 9 March 1972. (This is another of the documents in respect of which
Mr Plumtree says his signature has been forged);
Mr Plumtree was posted to active
service and signed a will declaration on 11 January 1967 (the date of the will
declaration was not in issue):
Mr Plumtree was not emplaned to leave New Zealand for service in South
Vietnam until 22 January 1967;
On 9 March 1967 Mr Plumtree requested
in writing that his engagement be reduced by 3 months. (This is the third
document in respect of which Mr Plumtree asserts forgery of his signature.)
There is a note on letterhead from Headquarters, New Zealand V Force dated 11
March 1967 which records Mr Plumtree’s reengagement, and notes that at the time
he was given to understand that his tour with New Zealand V Force would be
fifteen months. The document states: “... now that he realises that his tour is only twelve months he has requested
that his engagement be correspondingly reduced”.
foregoing is intended only as a summary of the main points of difference
between Mr Plumtree and the army. In view of our conclusions it is unnecessary
to deal with each and every disagreement in detail.
Essentially it was Mr Plumtree’s case that all army records that do not record
or reflect his recollection of events are either incorrect or are
‘fabrications’. He emphasised that he
volunteered to serve in Vietnam and that he would never have applied for early
release from active service. Mr Plumtree wants all of the army records
corrected so that they are consistent with his account of what happened when he
was in the army.
Plumtree drew our attention in particular to Col. Seymour’s letter dated 26
November 1997 in which states that Mr Plumtree was emplaned to Vietnam on 11
76. We do not
know why Col. Seymour referred to 11 January 1967 as the date on which Mr
Plumtree emplaned for Vietnam when he wrote to Mr Plumtree on 26 November 1997.
The letter is out of step with the other records. Lt Col. Taylor gave evidence that the letter of 26
November 1997 would have been drafted by someone on Col. Seymour’s staff for
Col. Seymour to sign, and that there is no reason to suppose that Col. Seymour
was writing with the benefit of any direct knowledge of the events in question.
It seems to us that the likelihood is that whoever drafted the letter may have
got the date wrong, maybe confusing the date on which Mr Plumtree was posted to
active service with the date on which he actually left the country. Certainly
we do not consider that Col. Seymour’s letter in 1997 establishes that the
records made in 1967 were wrong.
from Col. Seymour’s letter Mr Plumtree referred to his recollection that he
signed his will declaration (dated 11 January 1967) on the very day he left the
country. He was adamant in his recollection about this, as indeed he was about
all aspects of his recollection of the relevant events.
Nevertheless we do not consider that there is anything in the evidence we heard
that would allow us to conclude that the army records are wrong in the way Mr
Plumtree alleges. Putting aside Col. Seymour’s letter of 26 November 1997, the
army files appear by and large to be internally consistent. We appreciate that
the relevant events took place some 35 years ago, and that as a result Mr
Plumtree may have been unable to find other independent evidence which might
have established that his recollection of events was correct. Be that as it
may, the reality is that on the evidence that Mr Plumtree was able to present
to us there is no basis to conclude that the army records are inaccurate or
misleading in any of the ways Mr Plumtree argued.
79. We reject
Mr Plumtree’s assertion that any of the army records are ‘fabrications’.
Documents said to contain forgeries of Mr Plumtree’s signature
80. Although our conclusion as to the records generally is sufficient to dispose of the alleged forgeries of Mr Plumtree’s signature, the nature of the allegation is such that those documents warrant particular mention.
81. There are three documents which Mr Plumtree says contain forgeries of his signature.
(a) The form for reengagement for regular service dated 31 October 1966, across which the word ‘cancelled’ has been written;
(b) The form for reengagement for regular service dated 10 November
(c) The written request for
reduction in Mr Plumtree’s engagement dated 9 March 1967 Mr Plumtree did not
provide any independent evidence to support his allegations of forgery. In the
end his case amounted to him saying ‘I did not sign those documents’.
83. When asked why the army might go to the extreme lengths of forging signatures and fabricating records, Mr Plumtree said in effect it was to cover up the fact that the army had not done the paperwork correctly and was embarrassed to find, after he had arrived in Vietnam, that his status was that of a civilian.‑n not a soldier. But on Mr Plumtree’s own evidence he volunteered to serve in Vietnam. It is riot as if he found himself in the theatre of war against his wishes. Even if there was some error in keeping his records (which, save for the vaccination records, we have not found to have been established) there is nothing that seems to us to justify the assertion that the army would ever have needed to forge his signature to a document, much less that it would actually have done so. Furthermore the three signatures purporting to be those of Mr Plumtree appear to us to be in approximately similar form, and they appear to be similar to a signature on the undated letter requesting transfer as a driver with 161 Battery, which Mr Plumtree has accepted to be his own signature.
must be possible that Mr Plumtree did sign these documents and has forgotten
exactly what happened over the intervening years. In his affirmation on 21
March 2002 Mr Plumtree said that he was approached by a Corporal McClellan in
Vietnam in or about October 1967 to sign something and that he did so, although
he does not now know what it was that he signed. We do not suggest that was the
document dated 9 March 1967 but it does tend to confirm the possibility that
there are documents that were signed by Mr Plumtree and which at this distance
of time he no longer recalls fully. Thus despite Mr Plumtree’s assertions we
are not persuaded that any of the three documents in question contain forgeries
of his signature.
85. Finally, Mr Plumtree said that he was shown a fourth document by Lt. Col. Taylor at the meeting on 24 September 2001. That document was said to contain both Lt. Col. Smith’s signature as well as a forgery of Mr Plumtree’s signature. We do not know exactly what the content of that document was but we were told that it related to the question of whether Mr Plumtree applied for early release from service in Vietnam.
cannot imagine why Lt. Col. Taylor, who has obviously been very diligent in his
handling of Mr Plumtree’s requests, would have shown Mr Plumtree a document and
then failed to provide him with a copy of it. Lt. Col. Taylor was adamant that
he had no recollection of having shown Mr Plumtree such a document, and he had
no note of having done so. He said that the document described by Mr Plumtree
was not on file, and that he had kept the file in his possession at all times
between the date of the Rotorua meeting and the hearing.
87. We accept Lt. Col. Taylor’s evidence that no such document was shown to Mr Plumtree.
88. In summary, we conclude:
The reference to ‘1963’ in Mr Plumtree’s Certificate of Vaccination is
an error. The correct date should be shown as 1964;
The list of vaccinations contained in Mr Plumtree’s Unit Personal Record Card is incomplete. A full list of his vaccinations appears in the Certificate of Vaccination;
In all other respects there are no sufficient grounds to establish that
any of the army records concerning Mr Plumtree are inaccurate, incomplete or
F RELIEF SOUGHT BY MR PLUMTREE
89. In his claim as filed Mr Plumtree sought relief
in the form of orders for disclosure of information and for the correction of
records. Before the hearing began he added a reference to certain undertakings
he says he was given by an Australian Federal Minister in relation to his
partner and stepdaughter who are apparently living in the United Kingdom. He
said that the New Zealand Government should “... support a trouble‑free
expedited process accommodating there [sic] immigration” (presumably to New
Zealand, although that is not altogether clear from the document).
90. It must be doubtful whether there is any court
or tribunal in New Zealand that could or would ever grant that sort of relief.
Certainly it is beyond any power that we have.
91. By the time of the hearing Mr Plumtree had
accepted that, but for the missing document, he had received copies of all
personal information held by the army about him. His case at the hearing
focussed on the inaccuracies in the information as he saw them. During the
course of the hearing Mr Plumtree added that he felt he should be compensated
by money for what the army had done to him. No specific amount was mentioned,
but we took it that Mr Plumtree was asking for a very considerable award to
reflect all of his complaints, not just those properly referable to the Act.
Again, whatever the rights and wrongs of what has happened to him at the hands
of the army may be, an award based on anything other than interference with Mr
Plumtree’s privacy is beyond our jurisdiction.
92. Mr Plumtree also applied for orders
that his records be corrected. The only records that we have found to warrant
correction are his Certificate of Vaccination and his Unit Personal Record Card
(in respect of the vaccination information in it). Although we have decided
that those documents should be corrected, we do not regard the fact that they
have not yet been corrected as amounting to a breach of the Act by the army. We
set out the reasons for that conclusion when dealing with the submissions made
by the Privacy Commissioner.
G SUBMISSIONS BY THE PRIVACY
93. Ms Donovan levelled a number of complaints at
the army about the way in which it has handled Mr Plumtree’s requests. She drew
attention to two particular letters from Mr Plumtree to the army, namely his
letter dated 8 October 1998 and his letter dated 5 June 2001. Both contain
requests for personal information under Principle 6, and ask for correction
with reference to Principle 7. ‑PN4s Donovan submitted and that the
army’s response to the letters failed to meet the requirements of the Act. She
also argued that the first of the letters was more than a request for access to
personal information. She submitted that it should be read not only as a
request for a correction, but also as effectively providing a statement of the
corrections sought so that it that should have been dealt with as such under
94. We deal with the argument under the following headings:
Request for access: the 1998 correspondence;
Request for access: the 2001 correspondence;
Requests for correction.
95. The first breach of the Act asserted by the
Privacy Commissioner related to correspondence between the army and Mr Plumtree
in 1998. There had been correspondence between Mr Plumtree and the army before
that, in which Mr Plumtree made requests for access to personal information
about him. Mr Plumtree’s letter dated 3 November 1997 expressly referred to the
Act. The army responded on 26 November 1997. Copies of various documents were
provided. Neither Mr Plumtree nor the Privacy Commissioner argued that anything
that was done or omitted by the army before 1998 amounted to a breach of the
96. As the chronology set out earlier in this
decision shows, by 1998 Mr Plumtree had been writing to the army on and off
since the mid 1980s and perhaps earlier. We have little doubt that by 1998 the
army had formed the view that what he had to say was without foundation, and
that his correspondence was not welcomed.
97. Mr Plumtree’s letter of 8 October 1998 asked
for three things with explicit reference to Principle 6. They were (a) the
request he was said to have made for reduction in his engagement while he was
in Vietnam; (b) documents pertaining to the medical checks that were said to
have been carried out in April 1968; and (c) documentation setting out all
vaccinations he had for service in Vietnam.
98. Ms Laracy submitted that we should draw a distinction between items (a) and
on the one hand, and item (c) on the other.
99. Both (a) and (b) referred to documents that
were on the files which the army says had already been copied to Mr Plumtree.
The army said that on the basis of the letters written by it on 27 May 1992 and
25 May 1994. Both of those letters effectively say ‘We have enclosed a copy of
your file’ ‑ the 1992 letter containing the personal file, and the 1994
letter containing the medical files.
But in the absence of any record as to exactly which documents were
copied and sent there is no positive proof that the particular documents were
provided then. The most the army can say is that there is no reason to believe
that they would not have been copied along with everything else on the relevant
100. With respect to the letter requesting a
reduction in his engagement while he was serving in Vietnam (item (a)), Mr
Plumtree said that this was one of the documents he was shown for the first
time when he met Lt. Col. Taylor in September 2001. It is one of the documents
that he says has a forgery of his signature. It must be possible that the
letter was inadvertently omitted from the copying process in 1992, so that
despite what the army thought in 1998 (and what it argued at the hearing) Mr
Plumtree had not in fact had a copy of the document before he wrote in 1998. It
may also be that in 1998 the army failed to realise the significance of
reference to the request having been made while Mr Plumtree was in Vietnam.
Col. Seymour’s letter of 26 November 1997 listed as an enclosure Mr Plumtree’s
application for release dated 9 April 1968, but that was after Mr Plumtree
returned to New Zealand.
101. The evidence about documents relating to
a medical check up in April 1968 (item (b)) was also a little unclear. Mr
Plumtree’s letter of 8 October 1998 refers to something that had been ‘alleged’
by the then Minister of Defence, but we do not have a copy of that
correspondence. Ms Laracy’s submissions proceeded on the footing that documents
answering the description do exist, and we note that there is a reference to
such documents in a schedule that was prepared by Lt. Col Taylor. But the
document or documents were not put in evidence at the hearing; in fact neither
the army nor Mr Plumtree placed any emphasis on these particular documents at
102. Ms Laracy argued that in the case of both
of these items (i.e., the application for reduction in engagement and the 1968
medical information), when the army received Mr Plumtree’s letter dated 8
October 1998 it made a decision not to supply the documents because it took the
view that they had all been supplied in the past.
103. Ms Laracy submitted that the request for
the vaccination information (item ©) is different from these two items. This is
because although it is clear that the army had the information in 1998, it did
not provide it to Mr Plumtree because it did not open the mobilisation pack.
The army accepted that its failure to provide the information in October 1998
was a breach of Principle 6. But whereas the army says that it made a decision
in 1998 not to supply copies of items (a) and (b), it says it did not make a
decision of any kind in respect of item (c) because it did not know at that
stage that it had the information. This was argued to be relevant to the legal
consequences of the failure by the army to supply the information.
104. What was common to all three items was
the army’s reply to Mr Plumtree’s letter. Col. Seymour’s letter stated that the
army had in the past provided full copies of both Mr Plumtree’s personal and
medical records and that “...there is
nothing we can add to them. There is nothing else we can doforyou on the issues
you raise ... Just as the Minister of Defence considers the matter closed, so
too do I”
105. Ms Donovan submitted that this fell short
of the army’s statutory obligations in a number of ways. First, she submitted
that when the army received the request it was obliged to afford Mr Plumtree
reasonable assistance in making it; in particular the army should have
consulted with him if it was in any doubt about what he was asking for.
Secondly, it was said that the army failed to make a decision on the request in
compliance with the Act, because the fact that copies of records may have been
provided in the past is not a ground for refusing a request. Thirdly Ms Donovan
argued that the army failed to comply with an implicit obligation to turn its
mind to all possible sources of personal information held by it about Mr
Plumtree because it did not look in the mobilisation pack. Fourthly, Ms Donovan
submitted that the army failed to give any proper reason for refusing to
provide access to the information. Finally it was argued that the army failed
to notify Mr Plumtree that he had a right to draw the matter to the attention
of the Privacy Commissioner for investigation and review.
106. These matters were all raised in addition
to the allegation (accepted by the army) that failure to provide the
information that was found in the mobilisation pack was a breach of Principle
107. When a request is made to an agency for access to personal information, the way in which the agency must deal with the request is set out in Parts IV and V (together containing sections 27 to 45) of the Act. Of particular relevance in the present case:
(a) Section 29 sets out various grounds upon which an agency can refuse to disclose personal information. The army did not argue that any of those grounds were available to it in this case, but Ms Donovan’s point was that by virtue of section 30 the grounds set out in section 29 are the only grounds upon which the army might properly have refused to provide information to Mr Plumtree (there are some exceptions to section 30 but they are not relevant in this case);
(b) Section 38 obliges an agency that is in receipt of a request for access to personal information to give the individual requesting the information reasonable assistance to make the request in a way that is in accordance with the Act, or to see that the request is directed to a different agency if the agency that receives the request is not the appropriate agency;
(c) Section 40 deals with decisions on requests. The agency must make a decision about how it is going to respond to the request as soon as reasonably practical, and in any event within 20 working days after the request is received. The section obliges the agency to give or post notice of its decision to the person making the request;
(d) Section 44 obliges the agency to provide the individual concerned with the reason for any refusal and (if the individual requests, and subject to some exceptions that are not presently relevant’ the grounds in support of the reason. Section 44 also obliges an agency that has decided to refuse access to information to notify the individual of their right to have the decision investigated and reviewed by the Privacy Commissioner.
108. With one exception, we agree with Ms Donovan that Mr Plumtree’s letter of 8 October 1998 gave rise to all of these statutory obligations. The exception is that we do not agree that there was anything about Mr Plumtree’s request that was unclear or ambiguous so as to give rise to an obligation to assist him to make it in some other form, or to direct him to another agency. Mr Plumtree had identified the information he wanted access to with particularity, and his letter was in our view quite sufficient to inform the army what he was looking for.
109. Beyond that, Ms Laracy submitted in effect
that the submission by the Privacy Commissioner over‑analyses the case.
Ms Laracy pointed out that the central cause of the problem ‑ at least in
connection with the Certificate of Vaccination ‑ was the army’s failure
to look in the mobilisation pack before September 2001. She submitted that
while it was unfortunate and inexplicable that no one before Lt. Col. Taylor
had opened the mobilisation pack there was no suggestion of improper motive, or
that the army would not have made the contents of the pack available to Mr
Plumtree if it had opened it then.
110. With respect to the other information Ms Laracy said it was not as if the army made a bald decision not to give Mr Plumtree access to it; rather it believed that it had already provided Mr Plumtree with copies of everything he was entitled to have access to.
111. Ms Laracy accepted that the army did not
inform Mr Plumtree that he had a right to take the matter up with the Privacy
Commissioner, but noted that he had already been in touch with the Privacy
Commissioner before he wrote on 8 October 1998. Indeed Mr Plumtree’s letter of
8 October 1998 appears to have been prompted by the advice he received from the
Privacy Commissioner in its letter dated 5 October 1998.
112. We can see the sense of Ms Laracy’s submission
in respect of the vaccination information. It may well be that the army failed
in its obligations under the Act in a number of respects, but the root cause
was that it did not know it had the information. It was not suggested that the
information could not readily be retrieved, and it is clear that the failure to
open the mobilisation pack at any time before 2001 was wrong.
113. Nevertheless we do not accept that the
distinction between the vaccination information and the other items has quite
the legal significance Ms Laracy suggested. As we have said, upon receipt of
the request the army was obliged by section 40(1) to make a decision on it and
to give or post notice of the decision to Mr Plumtree as soon as reasonably
practical and in any event within 20 working days. Under section 66(3) its
failure to do those things in time is deemed to be a refusal to make the
information available. Thus when it comes to assessing whether there was an
interference with Mr Plumtree’s privacy in terms of section 66 of the Act all
three items are to be treated in the same way, i.e., as a refusal by the army
to make the information requested available. We are satisfied that on all three
counts there was no proper basis for the refusal to make the information
114. With respect to the application for re‑engagement
and the April 1968 medical records, Ms Donovan may well be right to draw
attention to section 44 as well, although in fact the army did make a decision
on the request, and it communicated it to Mr Plumtree within the time limits
set by section 40(1) and as required by section 40(1)(b). The army’s response
also gives a reason for the refusal. The underlying problem is that the reason
for the refusal was not one allowed by section 29.
115. Overall, we think it sufficient to deal with
this part of the case on the footing that the army’s failure to provide all
three items requested by Mr Plumtree in 1998 was in breach of Principle 6 and
involved a decision to refuse Mr Plumtree’s information privacy request in
circumstances where there was no proper basis for that decision (such a
conclusion being consistent with the relevant wording of section 66 of the
116. Both in respect of the vaccination information
and the other information sought in October 1998 it is also clear that the army
failed to inform Mr Plumtree of his right to have the matter investigated by the
117. However that failure was of no practical
consequence because Mr Plumtree was already dealing with the Privacy
Commissioner in relation to the very same issues. Indeed we note that on 24
December 1998 the Manager of Investigations at the office of the Privacy
Commissioner wrote to Mr Plumtree in respect of these matters. She referred to
and relied upon the army’s (incorrect) assertion that it had provided all of
the records, and indicated that it was unlikely that the Privacy Commissioner
would consider it to be a suitable use of his resources to investigate any
further. She referred to Principle 7 (which we deal with below), but concluded
that unless the army failed to attach a statement of correction then her file
would remain closed.
118. Of course we now know more than the Manager of Investigations did when she wrote to Mr Plumtree in December 1998. Even so we note that there is no reference in her letter to the breach by the army of section 44(b). We doubt that she considered failure by the army to notify Mr Plumtree of his right to make a complaint to the Privacy Commissioner to be any more important in the context than we do.
119. As the chronology set out earlier in this decision shows, it seems that after 1998 Mr Plumtree pursued his concerns with the Ombudsman. As far as we can tell he did not write to the army again until 5 June 2001. The relevant parts of his request read:
“Respectfully herein I am making a second request under Principle 6 and 7 of the Privacy Act of New Zealand. Requesting NZ Defence Force for a statement of correction to be attached to my army personal file. I ask that army fully investigates Unit 161 Bty Papakura Camp Vaccination Records; particularly vaccination records February/ March 1966, and pleases also the earlier Papakura Camp Hospital vaccination records. I request under Principle 6 and 7 of the Privacy Act of New Zealand, that I be accorded a full and proper record of all vaccinations received thus far throughout my service. “
120. This is a request both for access to information and in respect of correction. If and to the extent that the army did not understand exactly what was being asked, then in our view it was under an obligation by virtue of section 38 of the Act to assist Mr Plumtree to formulate the request in a way which met the requirements of the Act.
121. Aside from that, the army was obliged by
section 40 of the Act to make a decision on the request as soon as reasonably
practicable and in any event within 20 working days, and to communicate that
decision to Mr Plumtree. If the decision were to refuse access then the army
would have been obliged to give a reason for the refusal: see section 44. Mr
Plumtree should also have been given notice of his right to complain to the
122. None of these things appear to have occurred.
123. It may be that the army took the view that Mr
Plumtree’s correspondence had become repetitive and that there was nothing to
be gained by responding. We appreciate that by then there had been
correspondence over many years with several different investigating bodies.
However none of those things could have justified the army in ignoring its
obligations under the Act. Mr Plumtree had expressly referred to the Act in his
letter, and the army was on notice that it had to comply.
124. We therefore find that the army’s failure to
respond to Mr Plumtree’s letter dated 5 June 2001 was a breach of Principle 6,
and that it was contrary to section 40 of the Act. For the purpose of assessing
remedy, failure to deal with the request in accordance with section 40 is
deemed to be a refusal to make the information to which the request relates
available: section 66(3). We are satisfied that there was no proper basis for
125. In fairness to the army, it needs to be said that the Manager of Investigations at the Privacy Commissioners office also seems to have taken the view that Mr Plumtree’s letter in June 2001 did not raise any new issues. By then there was a different Manager of Investigations involved, but she wrote to Mr Plumtree on 15 June 2001 to say that her file would remain closed.
126. Both the 8 October 1998 and the 5 June 2001
letters from Mr Plumtree referred to Principle 7 and sought corrections to his
army records. Both were directed towards the vaccination records. At the time
Mr Plumtree would have had a copy of his Unit Personal Record Card, which
showed only five vaccinations.
127. Mr Plumtree’s 8 October 1998 letter raised a number of issues concerning the accuracy of records besides the vaccination records. It is possible that the army may have been unclear as to whether Mr Plumtree was asking only for the vaccination records to be corrected, or whether his request was much wider than that. Indeed during the hearing the evidence and much of the submissions seemed to assume that Mr Plumtree had asked for corrections going well beyond those dealing with his vaccinations ‑ so as to include (for example) the other issues relating to his Unit Personal Record Card and his service in South Vietnam.
‘However if one looks at the 1998 letter the Principle 7 request seems to us to
be limited in terms to the vaccination issue. Certainly the 2001 letter concerns
the vaccination records and nothing else.
129. In October 1998 and in June 2001 the army was not aware of the existence of the Certificate of Vaccination which it was unwittingly holding in the unopened mobilisation pack. When it was finally opened, the certificate demonstrated that Mr Plumtree had been right about his vaccinations all along. The army immediately recognised the obligation to correct the Unit Personal Record Card.
130. Nevertheless the letters in 1998 and 2001
cannot have amounted to a request to correct the Certificate of Vaccination
itself, for the simple reason that at that time its existence was unknown.
131. Furthermore we think that before the army is
criticised too firmly for failure to correct other information, the limited
nature of what Mr Plumtree was asking the army to do must be recognised.
Despite the adverse submissions made by the Privacy Commissioner at the
hearing, when the Privacy Commissioner’s Manager of Investigations dealt with
the matter in December 1998 she referred to the possibility of a statement of
correction in terms which suggest to us that she did not see Mr Plumtree’s
letter to the army of 8 October 1998 as containing an unequivocal request for
widespread corrections to the army files.
132. We therefore begin by limiting ourselves to
the issues concerning correction of the list of vaccinations in the Unit
Personal Record Card.
133. Since the army had not itself accessed the
vaccination certificate in 1998 it was understandable that it would have been
hesitant about correcting the Unit Personal Record Card. It does not follow
that the army was right to refuse to make any correction at all. After all, it
seems very likely that someone going to serve in Vietnam would have had more
than the vaccinations shown in the card. The army’s obligation under Principle
7(2) was to ensure that the Unit Personal Record Card was accurate, complete,
up to date and not misleading. If it
were clear that in fact Mr Plumtree would have had other vaccinations before
going to Vietnam then the army might have annotated the card to show that it
was unlikely that the recorded vaccinations were a complete record.
134. On the other hand we accept that the army could not have been expected to insert specific information about the other vaccinations without the details. In addition, there was no evidence at the hearing about how many vaccinations or what type of vaccinations would have been given to a soldier leaving for Vietnam or while serving there. In the end it is only speculation to say that it seems likely that more than the vaccinations shown in the card must have been given. In the circumstances we do not think that we can safely conclude on the evidence that was available that the army had a positive obligation to correct the Unit Personal Record Card before the Certificate of Vaccination was found.
135. When the
Certificate of Vaccination was found the army offered to correct the Unit
Personal Record Card. Because the new information was found after this
proceeding was commenced, and no doubt because of all the other issues raised,
in fact neither the Unit Personal Record Card nor the Certificate of
Vaccination have yet been corrected. But there was no suggestion that the army’s
failure to correct the information in the period since the Certificate of
Vaccination was found is in itself a breach of the Act. No doubt all concerned
thought it best to see what the outcome of this case was.
136. The fact that the specific information
relating to Mr Plumtree’s vaccinations was not available was a consequence of
the army’s failure to access the information in the mobilisation pack, which we
have already found to be a breach of Principle 6, and which should be dealt
with as such. We do not think that any breach of Principle 7(2) is established.
137. Ms Donovan went onto argue that when the army
received Mr Plumtree’s letter in 1998 it should have informed him of his right
under Principle 7 (3) to ask that a statement of corrections sought but not
made be attached to the record. But there is nothing in Principle 7 that
expressly imposes an obligation on an agency to inform an individual who has
asked for a correction under Principle 7(2) that he or she is entitled to have
a statement of the correction sought but not made attached to the disputed
information under Principle 7(3).
138. We do not overlook the various general
provisions of the Act which require an agency to inform an individual
requesting information of his or her rights of access to and correction of
information (see, e.g., Principle 3(1)(g), Principle 6(2) and the obligations
in sections such as section 38). But Principle 7(5) sets out what the agency
must do upon receipt of a request under Principle 7(1), namely to inform the
individual of the action taken. If it were intended by the Legislature that in
addition the agency must inform the individual of his or her rights under
Principle 7 (3) then Principle 7(5) could and would in our view have made that
explicit. Certainly we think it would be wrong to interpret Principle 7 as
implicitly giving rise to obligations the breach of which could lead to
liability under section 85.
139. Finally Ms Donovan argued that the 1998 letter
should be read not only as a request for correction, but also and at the same
time as a request that a statement of correction sought but not made be
attached to the information. (In
fairness to Ms Donovan, the submission was focussed on the more general allegations
that had been made in +the letter rather than just the issue of the Certificate
140. We think it is likely to be unusual for anyone
to ask both for a correction, and for the attachment of a statement of
corrections sought but not made, at the same time. The second request would
assume the first request is going to be unsuccessful. It is not clear to us why
someone asking for correction would want or need to do that. Furthermore the
right to make a request under Principle 7(3) does not arise until it is
established that the agency is not willing to correct information in accordance
with the first request. That said, we cannot altogether rule out the
possibility that there may be circumstances in which it is shown that an agency
is not willing to make a correction notwithstanding that it has not yet had a
request under Principle 7(2) to make the correction. In that case we do not see
any restriction in the Act to prevent ‑the second request from being made
at the same time as the first, although as we have said we suspect the circumstances
would be unusual. We also think that the requester would have to use very clear
wording in the request to make it clear what was being asked of the agency.
141. We do not read Mr Plumtree’s requests for
correction of his vaccination records in 1998 or in 2001 as including a request
for a statement of correction sought but not made. His letters ask that his
records be corrected and shown properly. There is no mention of a statement of
correction sought but not made, and nothing that we can see which could have
made such a request implicit.
142. It follows that in our view the army’s
response to Mr Plumtree’s letters of 1998 or 2001 was not an infringement of
his rights under Principle 7 in respect of his requests for correction of his
143. As we have said,
during the hearing the 8 October 1998 letter was treated as establishing a very
much wider request for a statement of corrections sought but not made ‑
i.e., in relation not just to the Certificate of Vaccination but also in
respect of all of the other matters raised, including the records of Mr
Plumtree’s service in Vietnam. In case we are wrong in limiting our decision to
the vaccination issue, we note that the same reasoning would apply even on the
wider basis ‑ namely that (i) the army was not then under an obligation
to correct anything (even after the hearing the only records that we regard as
requiring correction are those related to the vaccinations); (ii) the army was
not under an obligation to inform Mr Plumtree of his rights under Principle 7
(3); and (iii) that nothing in the letters amounted to a request by Mr Plumtree
for attachment of a statement of correction sought but not made.
144. We also note that when the Investigation
Manager of the Privacy Commission wrote to Mr Plumtree on 15 June 2001 she said
that Mr Plumtree had not provided information about his having made a request
to the army for the vaccination records to be corrected. Since Mr Plumtree’s
letter of 5 June 2001 was exactly such a request we assume that the Privacy
Commissioner was not given a copy of it. Putting that aside, it is clear that
as at 15 June 2001 the Privacy Commissioner did not think that anything Mr
Plumtree had written amounted to a request for a statement of corrections sought
but not made.
145. While we do not regard the army’s conduct as being in breach of Principle 7, it would be wrong to leave this part of the case without making the following observation. We think it is regrettable that Mr Plumtree was not informed by the army of his rights under Principle 7(3). Indeed we do not know why the army did not press Mr Plumtree with the possibility of attaching a statement of corrections sought but not made. The obvious purpose of this part of Principle 7 is to create some middle ground between ‘correction’ and ‘no correction’ so that there is a way in which individuals and agencies can, in effect, agree to differ. Whether it would have satisfied Mr Plumtree to provide such a statement in this case we do not know, but on the evidence that we heard it seems that a potentially valuable way of dealing with matter was not explored as fully as it might have been.
146. The breaches of the Act that we have found are these:
In breach of Principle 6, despite request the army failed in 1998 to provide Mr Plumtree with access to personal information it held about him (namely the vaccination information, his letter dated while he was in Vietnam requesting a reduction of his engagement, and the April 1968 medical information);
The army’s failure to provide such access was or is deemed by section 66(3) to have been a refusal to make the information available, for which refusal there was no proper basis;
In breach of Principle 6, despite request the army again failed in 2001 to provide Mr Plumtree with access to personal information it held about him (in this case being the vaccination information);
The army’s failure to provide such access is deemed by section 66(3) to
have been a refusal to make the information available, for which‑refusal
there was no proper basis.
147. Before the Tribunal can grant any of the remedies set out in section 85 of the Act, it must be satisfied that the conduct by the defendant amounts to an interference with the privacy of the plaintiff. Section 66 defines the phrase ‘interference with privacy’:
(1) For the purposes of this Part of this Act, an action is an interference with the privacy of an individual if, and only if, ‑
(a) In relation to that individual ‑
(i) The action breaches an information privacy principle;
(ii) The action breaches a code of practice issued under section 63 of this Act (which relates to public registers);
(iii) The provisions of Part X of this Act (which relates to information matching) have not been complied with; and
(b) In the opinion of the Commissioner or, as the case may. be, the Tribunal, the action ‑
(i) Has caused, or may cause loss, detriment, damage, or injury to that individual; or
(ii) Has adversely affected or may adversely affect the rights, benefits, privileges, obligations or interests of that individual; or
(iii) Has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.
(2) Without limiting subsection (1) of this section, an action is an interference with the privacy of an individual, if, in relation to an information privacy request by the individual, ‑
of this Act in relation to the request, including‑
(i) A refusal to make information available in response to
the request; or
(i i) A decision by which an agency decides, in accordance with section 42 or section 43 of this Act, in what manner or, in accordance with section 40 of this Act, for what charge this request is to be granted; or
(iii) A decision by which an agency imposes conditions on the use, communication or publication of information made available pursuant to the request;
(i v) A decision by which an agency gives a notice under section 32 of this Act; or
(v) A decision by which an agency extends any time limit
under section 41 of this Act; or
(vi) A refusal to correct personal information; and
(b) The Commissioner or, as the case may be, the Tribunal is of the opinion that there is no proper basis for that decision.”
148. We have already drawn attention to the
possibility of a distinction between Mr Plumtree’s requests for his vaccination
information on the one hand, and his requests for 1968 medical information and
application for reduction of his engagement on the other.
149. Ms Laracy submitted that the distinction
is relevant to the issue of remedy. She accepted that the army made a decision
in 1998 to which section 66(2)(a) applies when it refused to provide the
medical information/ application for reduction in engagement. She submitted
however that the army made no decision of any kind about the Certificate of
Vaccination, because it did not know that it had it. She said that as a result
the Tribunal could only award damages in respect of the Certificate of
Vaccination request under section 66(1)(a) if it were to find that Mr Plumtree
had suffered adverse consequences of a kind specified in section 66 (1) (b).
Thus, notwithstanding that the army accepted that its failure to provide access
to the Certificate of Vaccination was in breach of Principle 6, she submitted
that in the absence of any evidence of adverse consequences of the type listed
in section 66(1)(b) the Tribunal could not award damages against the army in
150. As we have said, we do not agree that the distinction between the vaccination information on the one hand and the application for reduction of engagement and the April 1968 medical records on the other has the significance for which Ms Laracy contended. But her argument did raise the issue as to whether the requirement for proof of adverse consequences in section 66(1)(b) is limited to section 66(1)(a) or applies to section 66(2) as well. Our attention was drawn to the view expressed by the learned author of Butterworths Privacy Law & Practice which, after referring to differing approaches taken by the Tribunal in ..the past, contains the following commentary:
“Since the opening words of section 66(2) provide that subsection does not limit section 66(1), and section 66(1) requires that there be some adverse consequences flowing from the breach o a privacy principle, it is unclear whether the adverse consequences requirement is to be read into section 66(2)(a)(i), or whether, as seems to have been the true intention, section 66(2) is to be construed independently of section 66(1). The latter interpretation appears to be the more plausible, in that the various actions that are the subject of section 66(2)(a) are normally highly unlikely to give rise to the sorts of adverse consequences contemplated by section 66(])(b). For example, it should be rare that a wrongful refusal to disclose information pursuant to Principle 6 would result in detriment or humiliation, or adversely affect the rights of an individual, except perhaps indirectly.” (para 1066.6)
151. It seems to us that such an approach raises a number of questions:
(a) At least at first glance it would seem that section 66(1) is the primary section and section 66(2) is secondary to it. Why have these provisions been drafted in this order and in the same section if they are to be treated as independent?
(b) If one regards the Privacy Principles as representing the standard setting provisions of the Act, and the provisions of Parts IV and V of the Act as being more of a mechanical/procedural nature (to ensure that the Principles are given effect to), then why should it be possible to obtain damages for breach of the ‘mechanical’ provisions without proof of adverse consequences when such proof is required if all that the plaintiff is able to establish is a breach of one of the Principles?
(c) The opening words of section 66(2) state that it does not limit the application of section 66(1). Section 66(1) provides that an action is an interference with privacy ‘... if, and only if, ...’ the various requirements of section 66(1) are established. What was intended by those words if the sections are to be treated as independent?
(d) If the Legislature were concerned to identify a class of cases in which damages could be awarded without proof of adverse consequences, why settle on the various acts or omissions set out in section 66(2)(a) for specific mention? Is it correct to say, for example, that a wrongful refusal to disclose information under Principle 6 will only rarely lead to detriment or humiliation or adverse affect for the rights of the individual?
152. The issue is plainly one of potential importance, but for reasons which follow we do not consider that we are required to decide it in this case.
Laracy’s submission depends on the suggestion that there was no evidence of any
adverse consequences arising out of the army’s refusal to provide access to the
154. In his submissions filed after the hearing
in reply to what had been said for the Privacy Commissioner and the army, Mr
Plumtree submitted that the recorded inaction by the defendant, an inaction
repeatedly served up on the plaintiff by the defendant caused unwarranted
stress to the plaintiff, the plaintiff suffered considerable stress.” We are
conscious of the fact that this assertion came in after the close of the
evidence. It may be right to say, as Mrs. Laracy argued, that Mr Plumtree did
not make such assertion in so many words when he was giving his evidence. On
the other hand it was overwhelmingly clear throughout that Mr Plumtree feels
very aggrieved by the way in which he sees himself as being treated by the
army. We have no doubt that he was highly sensitive to the replies that he got
from the army. We accept that in the overall scheme of his complaints, the
specific respects in which we have found the army to have interfered with his
privacy are not the greatest of his concerns. But it does not follow that Mr
Plumtree did not suffer humiliation, stress and injury to his feelings in 1998
and in 2001 when his access requests were denied. No one who saw and heard the
way in which Mr Plumtree gave his evidence and conducted his case could
realistically doubt that he found the army’s failure to deal with his information
155. We therefore consider that we have power
to award a remedy under section 85 in this case, whether or not the requirement
for proof of adverse consequences applies to section 66(2)(a). In the
circumstances we wish to make it clear that we have not formed any final view
as to the correct interpretation of section 66. The view of the section
expressed in the Butterworth’s commentary may ultimately prove to be correct,
but we hesitate before adopting it and prefer to leave the question open.
156. Having regard to the remedies listed in
section 85, we think that in this case there ought to be an appropriate
declaration under section 85(1)(a), and an award of damages under section
85(1)(c) and section 88. Mr Plumtree conducted the case by himself, and so we
do not imagine that he has had any legal costs. On that basis we think that in
principle he should also be entitled to recover any actual and reasonable out
of pocket expenses that he has incurred in respect of the proceedings in the
Tribunal. We make it clear that this is to be limited to costs he has
reasonably incurred to conduct the matter after it was commenced in this
157. The damages to be awarded are to
compensate Mr Plumtree for humiliation, stress and injury to his feelings
arising out of the way in which h‑is request for information were dealt
with by the army. In fixing an amount we acknowledge that it is difficult to
disentangle the adverse consequences suffered as a result of the matters found
to have been an interference with his privacy from Mr Plumtree’s deep‑seated
unhappiness about the way in which he sees the army as having treated him
generally. There is no suggestion of any pecuniary loss, or a lost benefit
suffered as a result of the way in which the army dealt with Mr Plumtree’s
158. In the circumstances we consider that a modest award of damages is all that is appropriate. We fix the amount at $3,000.00.
159. We make the following orders under section 85 of the Act:
(a) There is a declaration that the army has interfered with Mr Plumtree’s privacy in the ways set out at paragraph 146 of this decision;
(b) The army is ordered to correct Mr Plumtree’s Unit Personal Record Card by including an appropriate reference to the list of vaccinations in his Certificate of Vaccination;
(c) If the army keeps the Certificate of Vaccination or any copy of it then the army is ordered to correct the date of the entry for vaccinations presently shown as 1963 to show the date as 1964;
(d) The army is ordered to pay Mr Plumtree the sum of $3,000.00 for humiliation, stress and injury to feelings suffered by him;
(e) The army is ordered to reimburse Mr Plumtree for all expenses he has reasonably incurred in conducting this proceeding since it was filed in the Tribunal.
160. Although no formal order is made, we trust that it is clear that Mr Plumtree has a right to supply the army with a statement of all other corrections that he has sought to be made to his records, and that upon receipt of that the army will obliged by Principle 7(3) to attach it to his files in such a manner that the statement will always be read with the files. Whether the army agrees with the statement or not is immaterial.
161. If the parties are unable to agree on the form of the corrections required by paragraphs 159(b) and/or (c) of this decision or about the costs to be reimbursed pursuant to the order we have made in that regard then memoranda may be filed.
Dated the 2nd day of October 2002
P McDonald ‑ Member
(One signature missing)