Peters suffered breach of privacy but failed to identify who was responsible

The High Court (Venning J) has released a decision that found that Winston Peters had his privacy breached, but in court proceedings he failed to identify who was responsible, despite accusing a number of MPs and public servants. Therefore his claims for damages and declarations have been dismissed

There has also been a substantial cost to the taxpayers who paid for the defendants, but Peters may now have to pay costs (decision reserved).

Plaintiff: Winston Peters

First Defendant: Paula Bennett
Second Defendant: Peter Hughes (State Services Commissioner)
Third Defendant: Anne Tolley
Fourth Defendant: THE ATTORNEY GENERAL sued on behalf of the MINISTRY OF SOCIAL DEVELOPMENT
Fifth Defendant: Brendan Boyle (chief executive of the MSD)

Introduction: 

[1] The Right Honourable Winston Peters claims the defendants have breached his privacy.

[2] In April 2010, Mr Peters applied for and was granted New Zealand Superannuation (NZS) by the Ministry of Social Development (MSD). Mr Peters was paid NZS at the single rate. In May 2017, Mr Peters’ partner, Ms Trotman, applied for NZS. In the course of processing her application, MSD reviewed Mr Peters’ file. The review raised the question of why he was being paid NZS at the single rate when he had a partner. An MSD officer met with Mr Peters in July 2017. It was agreed Mr Peters had been overpaid NZS as he was not single and had a partner, Ms Trotman, at the time he was granted NZS. Mr Peters immediately arranged for the overpayment to be repaid.

[3] In the meantime, in June 2017, Mr Boyle, the chief executive of the MSD, had disclosed the overpayment and the MSD investigation into it (the payment irregularity) to the State Services Commission (SSC).

[4] On 31 July 2017, Mr Boyle also briefed Ms Tolley, the Minister of Social Welfare at the time, about the payment irregularity. On 1 August 2017, Mr Hughes, the State Services Commissioner, briefed Ms Bennett, the Minister for State Services at the time.

[5] An unknown source disclosed the payment irregularity to the media by anonymous calls to reporters between 23 and 25 August 2017. On one occasion the source alleged Mr Peters had lied when applying for NZS.

[6] On 26 August 2017, Lloyd Burr, a journalist approached Mr Peters. Mr Burr made it clear he had knowledge of the payment irregularity. To mitigate the damage to him personally and politically, particularly in the context of a general election due to be held on 23 September 2017, Mr Peters issued a press statement the next day. Over the next weeks and even months, a number of news items followed in which the payment irregularity and Mr Peters’ situation were discussed further.

The claim

[7] Mr Peters says that the public disclosure of the payment irregularity was a breach of his right to privacy. He says the defendants had a duty to keep the details of the payment irregularity confidential. In disclosing the payment irregularity to others Mr Peters says the defendants breached that duty.3 He seeks declaratory relief and damages.

Some points of interest.

[24] While Ms S should have picked up that question 26 had not been properly or adequately answered and the form was incomplete, Mr Peters must also bear some responsibility for the resultant ambiguity in the form as completed and the consequent issues that arose. To the left-hand side of question 26 is the definition of partner. If Mr Peters had read that definition, it would have been clear, given that Ms Trotman was his partner, that he should have completed the primary question in question 26 and answered it by ticking “Yes”.

[30] There was one further relevant event that occurred before Ms Trotman made her application for superannuation in May 2017. On 18 March 2014, the MSD sent a standard letter to Mr Peters which included a request that asked him to check the following details:

Relationship Status: You are single.
Your living situation: You are not living alone.

[31] Mr Peters did not respond to the letter. He has no recollection of it but accepts he would have received it. He says he understood the letter was asking if there was any change in his circumstances. He took the view that there had been no change in his circumstances since the 2010 interview. While Mr Peters’ details had not changed, the letter expressly set out that the MSD’s records of Mr Peters’ relationship status was that he was single. That was incorrect. If Mr Peters had paid more attention to the letter, he would have realised there was an issue with the MSD’s records regarding his initial application.

There seems to be a contradiction here. “He has no recollection of it” but “He says he understood the letter was asking if there was any change in his circumstances. He took the view that there had been no change in his circumstances since the 2010 interview.”

I don’t now he could have taken an understanding from a letter and taken a view on a letter he had no recollection of. This sounds odd to me.

[75] With respect to Mr Soper, his evidence that, in his opinion, the information was deliberately leaked as an attempt by Mr Peters’ political opponents to damage his credibility and to do what the Prime Minister wanted, which was “to cut out the middleman”, namely NZ First, is speculative. It is not the opinion of an expert based on established fact. Without direct evidence of the original source of the disclosure, Mr Soper’s opinion is speculative. Mr Soper’s opinion that it must have been a political opponent (and inferentially) someone from the National Party or a National Party supporter lacks a proven factual basis. It does not satisfy the requirement for admissibility as expert opinion evidence. Even if it was generally correct that the disclosure was politically motivated, it may not have been disclosed, for example, by a National Party member or supporter. It could also have been disclosed by a Green Party supporter aggrieved at the public backlash against Ms Turei following her disclosure of fraud.

[76] None of the journalists, including Mr Soper, were prepared to disclose their sources. They invoked the protection of s 68(1) Evidence Act. I was not asked to make an order under s 68(2) and was not in any event, provided with evidence to satisfy me that the criteria in that subsection were satisfied.

[108] Mr Peter’s reasonable expectation that the payment irregularity would be kept private must be contextual. It is not absolute. It must take into account that there are some parties who it was necessary or appropriate to disclose the information to. As noted, that includes a number of people within the MSD involved directly in the review and investigation. It also extends to disclosure to the chief executive of the MSD and from him to the chief executive of the SSC as Mr Henry conceded in opening.

[117] In summary, on the first point, I accept that Mr Peters had a reasonable expectation that the details of the payment irregularity would not be disclosed to parties who did not have a genuine need to know about it or a proper interest in knowing about it, and certainly had a reasonable expectation that the payment irregularity would not be disclosed to the media.

[125] In summary, I remain of the view that it would be highly offensive to deliberately disclose details of the payment irregularity to the media.

[141] Mr Peters seeks to overcome his evidential difficulty in identifying who disclosed his private information concerning the payment irregularity to members of the media on 23 and 25 August 2017 by reliance on the doctrine of res ipsa loquitur.

[143] Res ipsa loquitur, literally “the facts speak for themselves”, is a rule of evidence. Res ipsa loquitur generally arises in the context of negligence but is not restricted to that. In the Canadian case of Royal Bank of Canada v Boussoulas, for example, the Ontario Superior Court of Justice accepted it could apply to fraud where fraud was the only consistent explanation for the facts proven.

[148] There are a number of possible explanations as to how the details of the payment irregularity were disclosed to the media. While it is possible the disclosure was politically motivated, it could have been made by members of either of the other major parties, (at that time neither of them knew who Mr Peters and NZ First might support) or even a disaffected NZ First supporter disappointed in a perceived failing by Mr Peters. Further, a supporter of the Green Party or of Ms Turei who considered she had been treated harshly by the media could have been the source of disclosure to the media.

[149] That is the fundamental difficulty for Mr Peters’ reliance on res ipsa loquitur. The doctrine is not applicable where the plaintiff cannot identify the defendant…

[153] In summary, there are a number of elements to Mr Peters’ claim against Ms Bennett and Ms Tolley but they come down to the following key points. First, that he had a reasonable expectation of privacy that the details of the payment irregularity would be kept private. For the reasons given above, I accept that has been established to the extent that he had a reasonable expectation it would only be disclosed to those persons who had a proper interest or genuine need to know. I also accept that public disclosure would be considered highly offensive by a reasonable objective person. Again, for the reasons above, I agree that disclosure of the payment irregularity to the media with the intention it be made publicly available would be considered offensive to a reasonable objective person.

[154] Mr Peters’ pleaded case against the first and third defendants is based on the reasoning that the first and third defendants were members of a political party opposed to Mr Peters so that the information must have been leaked by them to persons who disclosed it to the media. But Mr Henry did not pursue that case directly in closing submission. He cannot rely on res ipsa loquitur to make it out.

So Peters failed in his accusations against Bennett and Tolley – he had no evidence they were responsible for the leak.

[168] The declaratory relief sought is based on the same pleaded facts as the claim for damages. With the exception of Ms Tolley’s unguarded comment to her sister, the disclosures made by the first and third defendants were either made for proper purposes or to persons who had a genuine need to know about the payment irregularity. Ms Tolley was not challenged on her evidence regarding her reason for discussing the matter with her husband and, given the brief and very general nature of the comment made to her sister, I decline to make any such declaration.

[169] The plaintiff’s claim against the first and third defendants on the first and fourth causes of action fails.

[176] I accept Mr Peters had a reasonable expectation that details of the payment irregularity would be kept private, to the extent that it would not be disclosed except for a proper purpose or to parties who did not have a genuine need to know and that it would not be disclosed to the media. But that does not support Mr Peters’ claim that the MSD and Mr Boyle should have kept it private if that is to be taken to mean to not disclose it at all…

[181] Mr Peter’s cannot identify the source of the leak to the media. He cannot say whether it originated from an MSD team member or one of the persons who later obtained the information through the Ministers’ offices. He is left with his reliance on the doctrine of res ipsa loquitur in his case against the fourth defendant, sued on behalf of the MSD. But for the reasons expressed above, the doctrine does not assist the plaintiff…

[231] Sir Maarten confirmed that, contrary to Mr Peters’ suggestion, in his experience, whether it was appropriate to brief a Minister did not depend on the Department requiring the assistance of the Minister or of Cabinet. Sir Maarten had not heard of or applied the criteria Mr Peters referred to. I note they are not referred to in the Cabinet Manual. As Ms Casey submitted, the process Mr Peters suggested was not a convention. None of the other Crown witnesses were aware of its application. Neither of the Ministers at the time were familiar with it. I accept the defence evidence on that point.

Peters was wrong about convention of briefing Ministers.

[236] In summary, for the above reasons and in the particular circumstances of this case, Mr Peter’s general allegations against the fourth defendant sued on behalf of the MSD cannot succeed as the plaintiff cannot rely on the doctrine of res ipsa loquitur to overcome his inability to prove that the source of the leak was a MSD member. I also accept that the second and fifth defendants were justified in disclosing the payment irregularity and Mr Peters’ identity to the Ministers when they briefed them on the ‘no surprises’ basis. In the particular circumstances of this case, the Ministers had a proper interest in knowing Mr Peters had been overpaid NZS, that the MSD had investigated it and that he had been treated the same as any other person would be in the circumstances. The plaintiff’s claim under the first cause of action against the Crown defendants fails.

[245] The allegation that the disclosure had no purpose but to disclose the payment irregularity to a political opponent is also not made out. The evidence is clear the disclosure within the MSD and to Mr Boyle, and by Mr Boyle to Mr Hughes, and then to the Ministers was not for that purpose. Further, there is the point Sir Maarten made that it would be quite improper for a chief executive to attempt to filter information to a minister out of a concern how the minister might use it.

[250] For the reasons given above, the disclosure by Mr Hughes to his Minister was for a proper purpose and to a party who had a genuine interest in receiving it. It cannot be said the disclosure was highly offensive as it was a communication made in confidence to a Minister to whom Mr Hughes was responsible to, and the content was factual and objective.

[274] Mr Soper explained his answer on the basis that he was not saying it was not serious. Politically it was very serious, but what he was saying is that the oversight in payment was not that serious as the money had been repaid. Later in the same interview when asked “Where to from now, how politically damaging could this be?” Mr Soper answered “I don’t think politically damaging at all”. Again, Mr Soper sought to qualify that answer by noting that that statement had been made the day after Mr Peters’ statement and the firestorm had not actually begun at that stage.

[275] Mr Peter’s private information about the payment irregularity should not have been disclosed to the media. The deliberate disclosure of that private information to the media sources caused Mr Peters harm and distress, but ultimately it was mitigated by the actions he took. In the circumstances, if Mr Peters could have identified who disclosed his private information to the media then damages in the region of $75,000 to $100,000 in total might have been appropriate. This was a deliberate breach of his privacy with the intention of publicly embarrassing him and causing him harm.

So an award of damages might have been appropriate if Peters had identified who leaked his information to media.

Summary/result

276] Mr Peters had a reasonable expectation that the details of the payment irregularity would be kept private and not disclosed to parties who did not have a genuine need to know about it or a proper interest in knowing about it. In particular, he had a reasonable expectation that the details of the payment irregularity would not be disclosed to the media.

[277] The deliberate disclosure of the details of the payment irregularity to the media would be regarded as highly offensive to an objective reasonable person.

[278] Mr Peter’s claim against all defendants fails as he is not able to establish that they were responsible for the disclosure of the payment irregularity to the media. He has conceded that neither Ms Bennett nor Ms Tolley were directly responsible for the disclosure to the media. Further, with the exception of the very general, unguarded
comment by Ms Tolley to her sister, the disclosures by the first and third defendants were for a proper purpose or otherwise to persons with a genuine interest in knowing.

[279] The disclosure by the fifth defendant to the SSC and by both the second and fifth defendants to their Ministers were, in the particular circumstances of this case, for a proper purpose and the Ministers had a genuine interest in knowing the details of the payment irregularity.

[280] The plaintiff is unable to rely on the doctrine of res ipsa loquitur in this case to make out a claim against any of the defendants, including the fourth defendant.

[281] The plaintiff’s claims for damages and declarations are dismissed.

Costs are yet to be decided, but they usually go against the unsuccessful party in legal proceedings, so I presume that Peters may be liable for costs. If so that will cover some of what taxpayers provided to the defendants.

Peters was justified in complaining about his privacy being breached, but failed to identify the leaker. Instead he accused a number of people, but failed, and that is likely to come at a significant cost to him.

In my opinion this is an example of Peters making accusations against political opponents, sometimes claiming to have evidence or implying he has evidence, but failing to come up with evidence.

His reputation was damaged by disclosure of his Super overpayment, but I believe he has also damaged his own reputation.

The question remains as to why Peters made an incorrect claim on his Super application and failed to notice when he started receiving payments and for the next for seven years that he was being paid more than he was entitled to.

Full judgment: Peters v Bennett [2020] NZHC 761 (20 April 2020)


Newsroom 13 November 2019: Winston Peters accepts National ministers didn’t leak

RNZ today: Paula Bennett welcomes Winston Peters’ privacy court case failure (includes ausio)

National’s deputy leader Paula Bennett says her name has been cleared by the courts after – what she calls – a fishing expedition by Winston Peters for his own political purposes.

Peters claimed the leak was for political purposes and targeted Bennett and Tolley, but Bennett has now responded saying Peters took her to court for political purposes.

The proceeding was initially filed in court just before NZ First went into negotiations with National (Bennett was involved) to supposedly try to form a coalition.

 

MSD deputy cops one for the team for data bungle

Murray Edridge, a deputy chief executive in the Ministry of Social Development, has resigned over an embarrassing data bungle, but the Public Service Association (PSA) says that responsibility went wider than that.

Stuff: MSD deputy quits after botch-up with client data security, despite having ‘no direct involvement’

A senior civil servant has quit after a privacy botch-up at the Ministry of Social Development – but a union says others are also responsible for the bungle.

Murray Edridge​, a deputy chief executive at the ministry, will step aside, even though his boss, Brendan Boyle, said Edridge had “no direct involvement” in the client data controversy.

But responsibility went “wider than Mr Edridge and his colleagues”, PSA national secretary Glenn Barclay said.

The Public Service Association (PSA) said Edridge had taken the blame for security and privacy issues arising from client data collection.

Is one person falling on their sword sufficient?

The ministry’s poor handling of issues around the handling of sensitive and personal data in late March and early April triggered an independent inquiry.

Data sharing is a contentious issue and this was an embarrassing stuff up.

Former Deloitte consultant Murray Jack, who led the investigation, made it clear the ministry was asked to implement policy in an unworkable timeframe, and the security issues were a direct consequence of that, Barclay said.

“At a time of major organisational change, putting pressure on agencies to implement complex IT projects is unfair and unwise.

“We are very concerned about the pressure the Government can bring to bear on ministries when their pet policies are at stake.”

Political pressures in election year? Not a good reason to rush things.

Social Development Minister Anne Tolley announced details of the independent review into MSD’s individual client level data system last month.

Client level data included beneficiaries’ demographic information and vital statistics, such as client addresses, details of their dependants and details of MSD programmes clients were enrolled in.

No privacy breach occurred in the IT botch-up, but the review found the IT system gave organisations access to other groups’ folders, with the potential to reveal vulnerable clients’ personal data.

The botch-up infuriated Tolley, being revealed as she promoted policies forcing non-governmental organisations (NGOs) to hand over personalised client data if they wanted Government funding.

Was she poorly advised about reasonable timeframes, or did she push things too hard?

On Tuesday, Boyle said the investigation confirmed the ability of other organisations to see one uploaded folder stemmed from human error, relating to the incorrect granting of access permissions.

Human error is easy with things like that, especially if under time pressure and with inadequate systems and tests to check crucial things like data security.

“While we are satisfied that no breach of privacy occurred, it is concerning that there was the potential for this to occur.”

Very concerning.