IN THE HUMAN RIGHTS REVIEW TRIBUNAL             Reference No. HRRT 011/19

UNDER THE PRIVACY ACT 1993

BETWEEN                                                                   DAVID ALEXANDER WRIGHT

PLAINTIFF

AND                                                                          SWIMMING NEW ZEALAND INC

DEFENDANT

In a few weeks this case will be heard by the Human Rights Review Tribunal (HRRT). I am in the process of finishing my submission to the Tribunal. It is a lengthy document; involving four submissions and 18,854 words. Posting all 61 pages on Swimwatch seemed an unnecessarily difficult way of explaining what the case was all about. In fact the case is much simpler than that.

This is a dispute between me and Swimming New Zealand (SNZ). I say I am entitled to have a copy of private information contained in a Report, prepared for SNZ by an expert investigator called Michael Marris over complaints made about my coaching. The complaints were made by a parent (Susan Turner) and a swimmer (Nikki Johns) involved in the doomed West Auckland Aquatics swimming club. SNZ argue that I am not entitled to the Report.

The Privacy Commissioner ruled in my favour; SNZ should give me the Report. SNZ refused and so we will now appear before the HRRT and let them decide.

While it may take 18,854 words to discuss all that has gone on in the three years since the Report was written, the case will be decided by how the HRRT interprets three quite straight forward clauses of the Privacy Act 1993. The HRRT will decide the case, not on my 18,854 words but on the law. The sections of the Act that the HRRT will consider are:

Principle 6 says, “Where an agency holds personal information the individual concerned shall be entitled to have access to that information.”

This is the portion of the law that supports my position. SNZ, in the Marris Report, holds information personal to me and the law says I am entitled to have that information.

SNZ, on the other hand, says there are two clauses in the Privacy Act that allow it to refuse to provide me with a copy of the Report. These are:

Clause 29 Other reasons for refusal of requests

• An agency may refuse to disclose any information if the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual.
• An agency may refuse to disclose any information if the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise.

I doubt that the HRRT is going to have any difficulty agreeing that Principle 6 provides approval for me to have access to the Report. Therefore whether I get the Report or not is going to depend on the HRRT’s view of the two exceptions allowed in the Act. My task is to say the two exceptions do not apply. SNZ, on the other hand, needs to prove that justice depends on the validity of the two exception clauses.

If SNZ manage to do that then I will not be given the Report. If I manage to convince the HRRT that the exceptions do not apply, the Report will be mine. If I am awarded the Report I am also claiming $240,600 in damages. I am fascinated to see how SNZ handle the contingent liability of a quarter of a million dollars in this year’s accounts. Conservative and correct accounting procedures require SNZ to increase their legal expenses by the amount claimed. A note in the accounts is not really good enough; especially when they have already lost the case in the Privacy Commission. But I wouldn’t bet against this lot ignoring the claim altogether.

And so the question comes down to – what are the arguments that have taken 18,854 words to explain and that I hope the HRRT will find sufficiently persuasive to rule against SNZ. Please note this post is summarizing quite complicated events in a dozen or so words. The simplicity apparent here is not necessarily accurate.

1. I do not believe SNZ made a promise of confidentiality that included me to Turner and Johns. I would need to see that in writing.
2. Even if a promise to them was made it has no merit because of four promises made to me.
3. SNZ cannot make contradicting promises – one to Johns and Turner and another to me. I was promised the Report:

• Verbally by the CEO of SNZ, Christian Renford
• Verbally and in writing by the author of the report, Michael Marris.
• In writing by SNZ Disputes & Disciplinary Policy rules.
• In writing by Principle 6 of the Privacy Act 1993.

4. The author of the Report’s email said I would “certainly” receive his Report.
5. Both Turner and Johns have “outed” themselves by discussing their involvement in the Report on national media or social media. Johns has entered into many discussions on Facebook with her followers on the subject. By their actions Turner and Johns have admitted that SNZ’s promise of confidentiality, if it ever existed, is meaningless.
6. SNZ have offered me a secret read only of the Report. If it was so confidential, if it was the subject of such rigid promises, why are SNZ proposing a secret read? I declined the offer.
7. When it suits SNZ they are selectively leaking portions of the Report. Full disclosure is required to avoid the damage of their gossip and innuendo.
8. The Report is not “evaluative material” described in the Act and is therefore not subject to any SNZ promise of confidentiality. Semi-judicial findings about criminal events are not included in the Act’s definition of “evaluative”.
9. The Report is not for the “sole” purpose of terminating my SNZ membership and cannot be withheld on that basis. There are at least two purposes, three parties and 10 possible sanctions in this case. That is not the “sole” event described in the Act.
10. The truthfulness, motives and behavior of Johns and Turner are an integral part of the investigation into my guilt or innocence. The disclosure to me of their veracity is part of my privacy. Its disclosure is therefore warranted.
11. SNZ are claiming confidentiality now they know the findings of the Report. If I had been found guilty the Report’s findings would have been given to me immediately and I would have been sanctioned. Justice cannot depend on whether SNZ approve or disapprove of the verdict.
12. I believe SNZ know the best way to hurt a well-known critic is to hold onto the Report. Stay silent and people will assume the worst. So that is what they are desperate to do.

There you have what is happening. In a few months we will know what the Tribunal decides.