13 December 2012


An outline of Director of Human Rights Proceedings v Hamilton [2012] NZHRRT 24 from the NZ Privacy Commissioner's Private Word -
An accountant's refusal over a four year period to give a former client access to her personal information has resulted in the Human Rights Review Tribunal awarding $20,000 in damages and $7,500 in costs against him. 
The Tribunal said accountant David Hamilton's actions amounted to "arrogant indifference" to his client's difficult situation when he ignored her requests for access to her personal information under principle 6 of the Privacy Act. 
The woman and her husband - who ran businesses together - had become concerned about delays in Mr Hamilton's work and decided to change to another accountant. The couple began asking him for their personal information in August 2008 so that they could get their annual accounts reviewed and complete tax returns for Inland Revenue. Having received nothing, the woman complained to the Privacy Commissioner. After investigating, the Commissioner referred the matter to the Director so he could take proceedings against Mr Hamilton in the Tribunal. 
Mr Hamilton gave various reasons for not providing his former clients with access to their personal information over the following four years. 
For instance, Mr Hamilton said that his appearance before the Disciplinary Tribunal of the New Zealand Institute of Chartered Accountants, a backlog of work and a decline in his business affected the attention he gave to his former client's Privacy Act requests. Additionally, Mr Hamilton told the Tribunal that he did not did not believe the accounting records he had produced but "not been paid for" were the woman's personal information. 
Mr Hamilton admitted that despite giving an undertaking to the Accountants' Disciplinary Tribunal that he would release the files to his former client, he had not done so at the date of the Tribunal hearing other than providing a few peripheral documents as a "token gesture". 
Mr Hamilton he had been asked to provide a quote for photocopying costs but said he felt that it was a "big mission" to locate the documents let alone add up the cost of copying them. 
After reviewing all the evidence, the Tribunal concluded that the evidence overwhelmingly established that Mr Hamilton had made no effort to comply with his obligations under principle 6 of the Privacy Act to supply the woman with her accounting records and that he had no grounds under the Act for this refusal. It classified his manner as "contemptuous". 
The Tribunal considered damages and noted that Mr Hamilton's failure to give his former clients their information resulted in the loss of an opportunity to provide information in returns to Inland Revenue in a timely way. The Tribunal awarded the woman $5,000 for this loss of benefit. 
For emotional harm, the Tribunal awarded the woman $15,000. The Tribunal had heard evidence that around the time the requests began the former clients' relationship had ended, one of their sons had died, and another son had been hospitalised. 
The Tribunal considered that the former clients were in a fragile state and that Mr Hamilton was aware of the woman's difficult circumstances but was indifferent to them. Mr Hamilton's failure to provide information that she needed to file overdue returns to Inland Revenue was also a significant source of stress and anxiety for her. 
As a result, the Tribunal considered that a $15,000 award of damages was appropriate. 
Finally, the Tribunal awarded the Director of Human Rights Proceedings $7,500 costs against Mr Hamilton. The Tribunal also ordered release of the requested information to the woman within 20 working days of the date of the decision.