Privacy Commissioner Case Note considers charging of lawyers for providing rates information

The Privacy Commissioner has released a case note on the charging of lawyers by local authorities for the provision of rates information (Case Note 209742 [2010] NZ Priv Cmr 21).

The Commissioner says a number of lawyers had complained about local councils charging a fee upon a request for rates information on behalf of clients.

“A lawyer acting for a property vendor requires rating information from councils to reconcile outstanding rates at the date of settlement for the sale of a property. The councils charged the lawyers a fee for providing this information. The lawyers complained that as they were requesting personal information about their clients, councils should not charge for providing this information.”

“We investigated this issue under principle 6 of the Privacy Act which gives individuals the right to access personal information that is held by an agency. Any request by a lawyer on behalf of a client is deemed to be a request by the client.

“Principle 6 is subject to a number of procedural provisions including section 35 of the Act.

“Section 35(1)(e) states, in part, that:

"a public sector agency shall not require the payment, by or on behalf of any individual who wishes to make an information privacy request, of any charge in respect of:

(e) ... the making available of information in compliance, in whole or in part, with the request;

The Commissioner noted that councils are public sector agencies.

“The councils questioned whether information about rates on a property is personal information.

‘Personal information' is defined in the Act as "information about an identifiable individual". It ought to tell the reader something about that person.

“When making the request the lawyer provides the council with the property address and the name of the property owner.

“Councils provide lawyers with a breakdown of the rates for the property. This contains the total rates charged to a property as well as details about instalments - how much they are, when they are due, if they were paid and when, and a running balance.

“We consider that ratings information provided to lawyers is about an identifiable individual. The client is identified on council records as being the property owner who is responsible for paying the rates.”

The Privacy Commissioner stated that the councils argued they were allowed to charge for this information under other legislation.

The Commissioner noted that section 7 of the Privacy Act sets out that if another law authorises personal information to be made available, principle 6 is overridden and will not apply.

“The councils argued the relevance of:

• Sections 27 and 28 of the Local Government (Rating) Act 2002 ("LGRA") which require councils to maintain a rating information database and charge for providing information from it;

• Section 37 of LGRA requires a council to maintain a rates record;

• Section 38 of LGRA allows various people to apply for information held on the rates record;

• Under section 58 of the Privacy Act, a council's rating information database is a public register and principle 4 of the Public Register Privacy Principles permits charging;

• Section 60(3) of the Privacy Act states that where any information privacy principle or public register principle is inconsistent with any provision of any enactment, then that enactment shall, to the extent of the inconsistency, prevail.”

Under section 37(1) of LGRA councils are required to maintain a rates record for each rating unit in its district. Information on the rates record includes the identity of property owners, rates assessments, and the level of instalments.

Under section 38 of LGRA, ratepayers and solicitors, acting as an agent for a party to a transaction relating to the rating unit, may inspect this information at council offices.

Section 38 also provides for the record to be inspected by ".. any other person who reasonably requires the information in the rates record for the purposes of a transaction". A council may request confirmation that this person "reasonably requires the information in the rates record".

“We believe that the wording of section 38 indicates that information on the rates record is not publicly available to anyone who is not the ratepayer, their representative, or without good cause. If it was public register information section 38 would not need to specify who may inspect the rates record,” the Privacy Commissioner stated.

“Schedule 2 of the Privacy Act lists public registers, but only refers to section 27 of LGRA. Information on the rates record as provided for in section 38 of LGRA is not public register information.”

Section 27 of LGRA requires councils to maintain a rating information database. This contains the total rates on a property, a legal description of the property, and capital and land value. This database is a public register under the Privacy Act and is covered by the Public Register Privacy Principles.

“However, LGRA stipulates that the rating information database that is available for inspection must not include the name of any person (unless it is necessary to identify the rating unit) or any address other than the street address of the rating unit. This limits what personal information is on the public register.

“The only information provided to lawyers from the public register is address, legal description, rate number, and total annual rates.

“The database does not include a financial breakdown of annual rates, or what instalments have been paid or owing.

“Since this financial information is not on the rating information database, section 28 of LGRA that allows a council to charge for supplying information from the database does not apply when a lawyer requests rates information. The request is not for information on the public register.

“Information generated by a council, in response to a request from a lawyer acting for a vendor, contains more detail than is accessible on the public register. A lawyer, or any member of the public, would not be able to access the amount of rates owing on a property by accessing public register information.”

The Commissioner stated that the ratings information provided to lawyers is contained in the rates record, not the rating information database. The rates record is not a public register under the Privacy Act. As such, the public register privacy principles in Part 7 (sections 58-65) of the Privacy Act do not apply.

In summary, the Privacy Commissioner stated that it was the Office’s view that a lawyer requesting rates information on behalf of a client is making an access request under principle 6. The request is made on behalf of the client. The information requested is not available on a public register.

“Public sector agencies cannot charge for providing access to personal information under principle 6,” the Commissioner said.

“If a council charges lawyers when providing this information it is our view that it is breaching principle 6 of the Privacy Act. Charging lawyers for personal information in this context is, in our view, a breach of principle 6 of the Privacy Act.

“Those councils we investigated changed their processes and no longer charge lawyers when they request rates information. The investigations were discontinued on the basis that the complaints were settled.”