New Zealand Law Society - Attempt to withhold phone and text records fails

Attempt to withhold phone and text records fails

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A phone provider had no proper basis to withhold records of calls and texts exchanged between a tenant and his landlord, the Office of the Privacy Commissioner decided.

In a case note, the Office says when the tenant asked for the records, his phone provider told him he would need a court order to access the information.

The provider's position was that the records were the landlord's personal information and not the tenant's, because the tenant had received the calls and texts rather than sent them. The tenant complained to the Office.

The case note says the complaint raised issues under rule 6 of the Telecommunications Information Privacy Code 2003 (TIPC).

"Under this rule, individuals have a right to access telecommunications information that a telecommunications agency holds about them, unless one of the withholding grounds in the TIPC apply."

It says the TIPC does not make any distinction between telecommunications information that a person sends and telecommunications information they receive – that person is entitled to access both.

The Privacy Commissioner says the information that the provider withheld showed that someone called and texted the tenant within a period of two weeks. "We considered this to be personal information about [him]".

"The landlord used the man’s name in the text messages. It was clear that they knew each other, and that the landlord wanted the man to see the content of the text messages. We could see no reason why giving the man a copy of the text messages would be an unwarranted disclosure of the landlord’s affairs."

The case note says the provider was told that the Office believed that the phone provider had no proper basis to withhold information from the tenant and had interfered with his privacy.

"We told the provider our view, and that the TIPC does not distinguish between incoming and outgoing telecommunications. The provider agreed to release the information to the [tenant] but reserved its position that the telecommunications data that a person receives is not their personal information."