Implementation: Communicating Interpretations

Developing Asia Pacific Standards in Case Noting

Blair StewartAssistant Commissioner

Office of the Privacy CommissionerNew Zealand

Interpreting Privacy Principles:Chaos or Consistency?

Symposium

Sydney, 17 May 2006

Outline

• The topic: How can Privacy Commissioners communicate their interpretations of IPPs? What works? What is best practice? What does accountability require?

• What I hope to cover: Case notes, what we’ve got, where we might want to go

What’s a case note?

“Any report outlining the outcome of an investigation, conciliation or determination of a complaint that is contained in a series of reports released by a privacy authority”

Source: Asia Pacific Privacy Authorities Forum, Statement of Common Administrative Practice on Case Note Citation, adopted 17 November 2005

What’s in a case note?

• A label identifying the report within a series i.e. a citation allowing people to find the note and know where it’s from etc., may also say something about the case itself

• Some facts• Some instructive indication of the outcome of

the case e.g. on how investigated, mediated, resolved or law interpreted

Examples of variety:• Tailored anonymised notes e.g. NZPrivCmr• Summaries or headnotes of tribunal decisions e.g.

HKPrivCmrAAB• Full determinations e.g. PrivCmrACD

What’s a case note?

“Any report outlining the outcome of an investigation, conciliation or determination of a complaint that is contained in a series of reports released by a privacy authority”

Source: Asia Pacific Privacy Authorities Forum, Statement of Common Administrative Practice on Case Note Citation, adopted 17 November 2005

Case notes can go where judgments cannot …

Complaints closed – 100% No jurisdiction – 2%

Closed within jurisdiction – 98%

Provisional opinion – 23%

Settled: no final opinion – 5%

Final opinion – 19%

Settled: no provisional opinion – 74%

Total closed without final opinion – 78%

HRRT – 2% Typical breakdown of processing of complaints to NZPC: These figures are derived from an amalgamation of 2001/02 and 2004/05 figures, and rounded out

Case notes can go where judgments cannot …

Complaints closed – 100% No jurisdiction – 2%

Closed within jurisdiction – 98%

Provisional opinion – 23%

Settled: no final opinion – 5%

Final opinion – 19%

Settled: no provisional opinion – 74%

Total closed without final opinion – 78%

HRRT – 2% A conciliated outcome is a key objective of the Privacy Commissioner complaints model: case notes are an innovative way to reveal and report interpretations adopted in that context

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

NZPrivCmr

PrivCmrA

HKPrivCmr

KRPIDMC

NSWPrivCmr VPrivCmr

NZ HRRT (On-line)

NZ HRRT Compilations

PrivCmrACD

HKPrivCmrAAB

PC of Canada

Timeline 1994 - 2006

Principal Asia Pacific Privacy Case Note Series

The steady advance of case notes in Asia Pacific region …

APPA Forum has adopted a citation standard

Abbreviations adopted for APPA participants:• HKPrivCmr – Hong Kong Privacy Commissioner for Personal Data• KRPIDMC – Korean Personal Information Dispute Mediation

Committee• NSWPrivCmr - New South Wales Privacy Commissioner• NTICmr – Northern Territory Information Commissioner• NZPrivCmr - New Zealand Privacy Commissioner• PrivCmrA – Privacy Commissioner of Australia• VPrivCmr – Victorian Privacy Commissioner

Source: Asia Pacific Privacy Authorities Forum, Statement of Common Administrative Practice on Case Note Citation, 17 November 2005

Case notes to date from APPA members

0

20

40

60

80

100

120

140

VPrivCmr NSWPrivCmr KRPIDMC HKPrivCmr PrivCmrA NZPrivCmr

Casenotes to '06

Canada has been active too

0

50

100

150

200

250

300

350

VPrivCmr NSWPrivCmr KRPIDMC HKPrivCmr PrivCmrA NZPrivCmr PrivCmrC

Casenotes to 2006

Canada has not adopted a citation standard – which may diminish usefulness of rich vein of provincial material

Some thoughts on moving forward

• Case notes have a critical place in reporting “real life” operation of privacy law: tribunal and court cases offer only a partial glimpse

• Asia Pacific has already laid critical foundations (body of case notes, citation system)

• Canadian material too valuable to ignore, accessible on-line but suffering on citation side

Some ideas for action

• PCs should be encouraged to continue to produce case notes: the best encouragement may be for iPP project to put them to good use

• Canadians IPCs should be encouraged to reflect on citation practices

• The iPP project could assist commissioners by indicating gaps in coverage that might be filled by new case notes: this can contribute to selection practices

… and may be quoted in an amusing case note