Office of the Privacy Commissioner
Decision Guide:
Investigations and Dispute
Resolution
Updated August 2022
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Our investigative function
In general, the Privacy Act doesn’t provide detailed procedural requirements for our
investigations and dispute resolution function. Instead, there are a relatively small number
of key mandatory requirements or legal checkpoints – such as the requirement to notify the
parties if the Commissioner intends to investigate the matter. The Act gives the
Commissioner and the OPC staff (under delegation) a significant amount of autonomy and
discretion in carrying out investigations, choosing to facilitate settlement either with or
without investigation as well as a discretionary power to decline to investigate if certain
grounds exist.
The impact of our decisions: Legal and practical consequences
Our decision to investigate, attempt to set le or decline to take action affects the legal rights
of complainants and respondent agencies. If we decline to investigate a complaint for lack
of jurisdiction, or using our section 74 discretion, the complainant wil not have access to the
Human Rights Review Tribunal (“the Tribunal”). While our decision to decline to investigate
can’t be taken to the Tribunal it is subject to review by the Ombudsman or to judicial review
in the High Court. In this way we have something of a gatekeeper role, directly limiting
access to judicial decision-makers who can provide remedies.
The Of ice has created a Compliance and Regulatory Action Framework, which should be
used to inform the decisions we make to investigate, decline to investigate or take some
alternative action.
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Our complaints role in context: One of a range of tools for
addressing non-compliance
Investigators need to bear in mind that investigations of individual complaints is only
one of
the means established by the Privacy Act for addressing breaches of the privacy principles.
If, for example, our assessment of a complaint finds there’s been a breach but no harm, but
we consider there are issues that warrant some action, there may be other options available
to address the matter under our other statutory functions. There are a range of options that
are available in these situations, whether that is providing advice to the agency, issuing a
case note or guidance document, or contacting an industry body. If an investigation into a
complaint by an aggrieved individual is not appropriate, the investigator can also consider
referring the matter to the Compliance Team or the Regulatory Alignment Panel, particularly
if the breach is serious.
We have a number of other options for addressing systemic or significant privacy problems
within a particular agency or type of agency. We might utilise these options before, instead
of, after, or during the investigation of a complaint, depending on the circumstances.
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https://privacy.org.nz/about-us/transparency-and-accountability/opc-policies/caraf/
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Examples of further action
•
A warning or compliance advice letter
•
Ongoing monitoring of the agency
•
Approach the Chief Executive or the Minister about an underlying systemic issue
•
Education for the agency or industry
•
Guidance for the agency or industry (eg our Tenancy Guidance, CCTV guidelines)
•
Transfer the matter to another investigating agency
•
Public comment (media release,
Privacy News, social media comment)
•
Name the respondent:
https://www.privacy.org.nz/about-us/transparency-and-
accountability/opc-policies/naming-policy/
•
Issue a compliance notice
Legal checkpoints: Key statutory and common-law rules
Below are some key legal rules and principles that provide a framework for all actions and
decisions in our complaints and investigations role.
Act within the law
•
Don’t exceed the power given by the Privacy Act or interpret its provisions
unreasonably.
Accessibility focused approach
•
Don’t assume either the complainant or the respondent wil have knowledge of our
process.
•
Don’t try and interpret facts in order to fit a Privacy Act complaint.
•
Do try and work out what the complainant and respondent are trying to achieve and
help direct them the most appropriate place for that.
•
Do try and manage expectations about what we can and cannot do.
Natural justice
•
Give people a reasonable chance to have a say and listen to them.
•
Give clear reasons for our decisions and actions.
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•
Significant discussions with a party over the telephone may need to be followed up in
writing.
Using our discretion
•
The processes we follow shouldn’t be so rigid that we fetter our discretion under the
Act.
•
But at the same time be as consistent as possible. Our decisions should be consistent
with the Commissioner’s earlier interpretations of the law and of established judicial
authority – and if we do change our mind, we need to acknowledge the change and
carefully justify the change with clear reasons.
Secrecy and privileged information
•
Maintain the secrecy of all information and matters that come to your attention during
your work, unless we need to disclose the information to fulfil the purposes of the Act
(section 206).
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•
Refer to our practice note on how to exercise our discretion under this section.
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•
Protect privileged information
(section 90). Make sure that privileged information we
receive as part of an investigation remains privileged. We can see it, but no-one else
should.
Don’t copy correspondence from one party to the other
Sometimes we are asked by one party for a copy of correspondence
that we’ve received from the other party. We deny these requests,
relying on sections 29 and 206.
You should instead simply summarise the substance of the relevant
allegations and arguments from the first party. Here you should be careful
about exactly what you relay to the other party. Ensure that you are
communicating the information necessary to progress the matter. If the
information is particularly sensitive (for example, a complainant’s description
of their harm) check with the party who provided it first to confirm they are
comfortable with your summary.
2 Add objective reference to secrecy policy.
3 Add objective reference to practice note.
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Other legal rights and interests
Section 21 of the Act requires the Commissioner to take into account other rights and
interests, including:
•
other human rights and social interests that compete with privacy, such as the general
desirability of the free flow of information and the right of government and business to
achieve their objectives in an efficient way
•
New Zealand’s international obligations, and general international guidelines relevant
to privacy
•
cultural perspectives on privacy
•
rights under
Te Tiriti o Waitangi.
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Complaints
Complaints can be oral
Complaints do
not have to be in writing. We can’t therefore insist to a
complainant that they must put their complaint in writing before we can
accept it.
However, the Act also says an oral complaint must be put into writing as
soon as practicable, and that we have to give the complainant “such
reasonable assistance as is necessary in the circumstances” to enable
them to put it in writing
(section 72). This means it is generally more
efficient for a complainant (or their advocate) to put the complaint in writing
themselves if this is possible. If you do take a verbal complaint, send the
written version to the complainant to confirm you have accurately recorded
their concerns before you progress the matter further.
Initial screening:
Is this a complaint we can and should investigate?
When we first receive a communication, we need to:
•
establish whether the person intends it to be a complaint under the Privacy Act
•
decide whether it’s a complaint we have jurisdiction to investigate.
If we do have jurisdiction, we then need to decide what action to take. This includes whether
we should decline to investigate it using our discretion under section 74, if one of the
grounds in that provision applies.
If it is a complaint, is it one we have jurisdiction to investigate?
People and bodies outside our jurisdiction
We won’t have jurisdiction to investigate the complaint if it concerns a person or body that is
not an “agency” within the terms of section 8 of the Privacy Act.
Overseas agencies
If an overseas agency is carrying out business in New Zealand, the Privacy Act will apply to
the information it collects or holds in the course of carrying out that business. However, the
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definition of overseas agency excludes foreign governments, entities carrying out public
functions on behalf of any foreign government and news entities.
The Act also applies to an agency that is a foreign individual, but only in respect to
information collected by that individual in New Zealand or that is being held by them while
that individual is present in New Zealand.
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Is it an agency?
The media is excluded – as long as they are regulated (eg BSA, Media Council or overseas
equivalent).
There are organisations that don’t fall within the definition of “agency” for the purposes of
their interactions with the public, but are “agencies” in relation to the personal information
they hold on their employees. For example, we can’t investigate complaints about courts or
tribunals in relation to judicial functions. That exclusion covers judges and court/tribunal
officials – but it
doesn’t cover other people in a court or judicial context, such as lawyers or
witnesses. For the application of this exclusion to registrars and other courts officials, see
Ministry of Justice v S (High Court, Wellington, CIV-2005-485-1138, 7 Apr 2006).
You may need to determine whether the respondent body or individual is a “tribunal” under
the Act. The term “tribunal” essentially refers to statutory bodies with a judicial function
(
Director of Human Rights Proceedings v Catholic Church for New Zealand [2008] 3 NZLR
216. To determine, however, whether a body is acting judicially as a “tribunal” rather than
administratively is not always easy. The key distinction is whether the activity is more judicial
than administrative and takes into account a number of factors set out in the leading case,
Trapp v Mackie [1997] 1 All ER 489 (HL).
Our limited jurisdiction over intel igence organisations
What the Act says: Section 28, “Intelligence organisations”
“Information privacy principles 2, 3, and 4(b) do not apply to information collected by
an intel igence and security agency.”
Our jurisdiction over intel igence and security agencies – that is, the Security Intelligence
Service and the Government Communications Security Bureau – excludes complaints under
principles 2, 3, and 4(b). We also cannot issue an access direction or refer the complaint to
the Director of Human Rights Proceedings (“the Director”).
See also the specific exception in IPP10(2) that allows an intelligence and security agency
to use personal information for a secondary purpose and the exception in IPP11(g) that
permits the disclosure of personal information by any agency that believes on reasonable
4 Section 4
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grounds that the disclosure is necessary for an intelligence and security agency to perform
any of its functions.
If we do investigate an Intelligence agency, the process ends with our Office, the
complainant is not able to pursue the matter in the Tribunal (s95).
Parallel jurisdiction with IGIS?
When we do have jurisdiction to investigate a complaint, check if the
complaint “more properly” belongs with the Inspector-General of
Intelligence and Security. Usually complaints about access and correction
“more properly” belong to the Office of the Privacy Commissioner, but other
complaints may require consultation with IGIS before deciding where they
“properly belong”.
For more information see:
Intelligence and Security Act amendments to
Privacy Act: FAQs5
If we have jurisdiction, should we investigate?
Section under which the
Factors we would consider
Commissioner has discretion
to decline to investigate
S74(1)(a) The complainant has
What is reasonable –
not made reasonable efforts to
• Has it been brought to the attention of the privacy
resolve the complaint directly
officer and/or complaints team?
with the agency concerned
• Has the agency acknowledged receipt of the
complaint and/or confirmed it is working on it?
• How much time has the individual given the agency
to respond?
• What is the relationship between the complainant
and respondent?
• What are the complainant’s circumstances? Are
they vulnerable and/or is there a significant power
imbalance?
• Is the complainant represented by a lawyer or
advocate?
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https://privacy.org.nz/publications/guidance-resources/intelligence-and-security-act-amendments-
to-privacy-act-faqs/
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• If it is an allegation of a failure to respond to an
access request, has the complainant followed up
with the respondent?
• Is it a sole trader/small agency and has the
relationship broken down?
S74(1)(b) – alternative dispute
Examples
resolution process because of
• Lawyer – Law society
membership of a particular
• Private Investigator – PSPLA
agency/profession
• Medical professional – relevant registration board
• Finance company – can search t
he Register to find
out relevant resolution body (note- credit complaints
about correction of credit reports, usually can’t be
addressed by these other bodies)
• Bank –
Banking Ombudsman
• Telecommunications company –
TDR
• Utility company –
Utilities Disputes
• Social Workers Registration Board
S74(1)(c) There is an
It can be dif icult to try to facilitate a resolution to a
adequate alternate remedy
complaint if the respondent is being asked to respond to
(other than a right to petition
similar facts in another forum at the same time. Rather
House of
than running a parallel process it may be preferable for
Representatives/Ombudsman),
the complainant to pursue both the privacy and other
which it would be reasonable
issues in one forum. While the other forum can’t make a
for the complainant to pursue.
ruling on whether the Privacy Act was breached, it may
be able to deal with the underlying facts in respect of the
legal obligations it does have jurisdiction to determine.
Access
• If proceedings have been filed in the Employment
Relations Authority (“ERA”) or the Courts and the
individual says they need the information for their
proceedings, usually discovery or the ERA’s powers
to compel information would be an adequate
alternate remedy.
• Is the information predominantly company
information? Is the respondent a lawyer/accountant
– would a better remedy be access to client file
through their professional association eg
NZLS/NZICA? (Could also be s74(1)(b)).
Other complaints
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• The facts alleged to be a privacy breach are
intertwined with a larger issue that is being or would
be better addressed in another forum.
• The complainant has a mediation scheduled in
another forum (this may resolve the wider issue and
even if the privacy concerns are not directly
addressed, both parties may be able to move
forward). This may be a temporary decline on the
basis the complainant can come back if it is not
resolved.
S74(1)(d) There is a
Codes of practice with a complaints procedure
complaints procedure in a
requirement for agencies:
code of practice, which the
• Credit Reporting Privacy Code – Equifax, illion,
complainant has not taken
Centrix. However, if it is a correction request, it is
reasonable steps to pursue.
unlikely to be useful to refer a complainant back to
the complaints procedure to ask the credit agency
to review its own refusal to correct information.
However, it may stil be useful true for simple
processing errors/failure to respond.
• Health Information Privacy Code – this includes
Health NZ, DHB’s, GP’s, ACC, health insurance,
HDC etc
• Telecommunications Information Privacy Code
• Have they been trying to resolve it directly with the
74(1)(e) Complainant has
respondent? If yes, this may be a good reason to
known about the breach for
accept the complaint despite the delay.
more than 12 months
• Is it a serious breach?
• Is it just outside the 12-month period and are there
other factors that make an investigation necessary
or desirable (e.g. public interest)
• If yes to all of the above, we stil need to consider
whether an investigation would be practicable/fair to
the respondent (e.g. are there good records, are
relevant staff stil available and likely to recall the
circumstances).
• Was the delay due to factors outside the
complainant’s control (e.g. health issues)
• Was the delay due to professional advice (or the
respondent) misdirecting complainant on whether a
complaint to OPC was an option.
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74(1)(f) The time that has
Under this section the complainant may have only found
elapsed is such that a complaint
out about the breach within the last 12 months, so the
is no longer practicable or
complaint might not be excluded by 74(1)(e). However,
desirable.
notwithstanding this an investigation may no longer
practicable. Examples:
• Availability of staff
• Records of the breach – (was the breach
verbal or writ en?)
• Evidence/witnesses
• Likelihood that circumstances can be
recalled by individuals involved
• Whether complainant made any attempt to
address with respondent and if so, how soon
after finding out about the breach
Essentially, the complaint is withdrawn
74(1)(g) Aggrieved individual
does not wish to pursue the
• If the complaint is brought by a representative it
complaint
may be appropriate to confirm during the
investigation that the aggrieved individual still
wishes to pursue the mat er.
• Important to note that a complainant who withdraws
in order to pursue a complaint in the Tribunal may
not be able to do so. Inform a complainant who
seeks to withdraw in these circumstances of the risk
their complaint could be struck out and suggest they
seek legal advice (s
ee Gray v Ministry for Children,
Strike out decision).
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• A complaint from an individual (rather than at the
74(1)(h) The complainant does
Commissioner’s own initiative) would normally
not have sufficient personal
need to be brought by or on behalf of an aggrieved
interest in the subject of the
individual or individuals. Note that in order to find
complaint
an interference with privacy the individual who is
affected by the breach must be harmed by the
breach.
• If a complainant does not have a personal interest,
consider whether the complaint raises sufficiently
serious issues that other action would be
warranted. Consider referring to the Regulatory
Alignment Panel to assess this.
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Gray v Ministry for Children (Strike-Out Application) [2018] NZHRRT 13 (11 April 2018).
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• Refer to the compliance pyramid in the Compliance
74(1)(i) The subject of the
and Regulatory Action Framework.
complaint is trivial
• Consider whether there is any public interest.
• Consider the impact/importance of the issue for the
individual concerned.
• Consider the conduct of both parties.
74(1)(j) The complaint is
• Is the complainant genuinely seeking to address a
frivolous, vexatious or not
privacy concern?
made in good faith
• A complaint may be trivial despite being
technically well founded/a breach – e.g. a request
for review of withheld information that is
trifling/already known to complainant.
• Vexatious – for example the complainant has
habitually and persistently made numerous
complaints or request for reviews against the
same agency with the intention to annoy or harass
the agency or for some other improper purpose.
• Bad faith- is the complaint made for an improper
purpose or is it motivated by factors not related to
privacy or accountability under the Privacy Act?
• Refer to the Compliance and Regulatory Action
74(2) It appears to the
Framework.
Commissioner that having
• Consider the broader public interest/benefit of an
regard to all the circumstances
investigation.
of the case, an investigation is
• Consider the nature of the breach and the
unnecessary.
seriousness of the harm.
Conduct of the parties
• Has the agency already acknowledged the breach
and taken steps to prevent it happening again?
• Has the agency provided a fair and reasonable
response?
• Has the agency already offered what we would
consider a reasonable resolution?
• Has the complainant provided false or misleading
information?
Outcomes
• Is the remedy or outcome expected, or sought by
the complainant unrealistic, unachievable, or
trivial? (e.g. they want a professional struck off
their register or an employee dismissed, which
OPC cannot action)
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• Is an investigation unnecessary because OPC wil
be addressing the issue through an alternative
compliance mechanism (e.g. there is an Inquiry
underway, or we wil issue a compliance notice
instead), or it is clear that the information
requested is subject to a withholding ground or
that the action complained about comes within an
exception.
Contact issues
• Complainant has failed to respond after a
reasonable number of attempts to make contact or
the complainant has failed to advise the OPC of a
new address and telephone number and is no
longer reasonably contactable.
• Complainant does not know or has failed to
provide the name of the agency complained about
and/or the name of the individual with whom they
interacted.
Access Complaints
Have we investigated the same or a similar request for
this information previously? Did we review the withheld
information/refusal decision? If so, another investigation
may not be necessary. However, consider whether the
relevant withholding grounds were time sensitive (e.g., a
refusal because the information could be sought under
the Criminal Disclosure Act, or maintenance of the law
due to an open investigation, which may now be closed).
Has the information been released? If so, we might only
investigate an alleged delay if the delay actually affected
the individual. However, we may take other action instead
(e.g. send a compliance advice letter to the agency to
remind it of its requirement to respond if there was a
technical interference).
Is it an access request prompted by an underlying privacy
issue that it would be bet er to address directly either
through investigation or other compliance activity?
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Section 81(3) The
We must have notified the parties we are investigating
Commissioner may decide
before we can use this section. This is essentially the
during the course of an
same as s71(2) under the Privacy Act 1993 and we would
investigation that further action
use it in the same way. For example:
is not necessary or
• Is there a dispute of facts that further investigation is
appropriate.
unlikely to resolve?
• Does settlement appear possible?
• Has the complainant expressed a clear intention to
proceed to the Tribunal regardless of the outcome
of the investigation?
• Has the complainant rejected a reasonable
settlement offer or has either party declined to
wil ingly participate in a conciliation process?
Referrals to Ombudsman, Health and Disability Commissioner or
IGIS
Section 75
If it looks like the complaint, or part of the complaint, belongs more properly with the
Ombudsman, the Health and Disability Commissioner, the Inspector-General of Intelligence
and Security, or the Independent Police Conduct Authority, then we
must:
•
consult with the relevant agency without delay
•
decide what to do
•
refer the complaint, or the relevant part of it, to the other agency without delay if we
think it belongs there
•
notify the complainant that we’ve done this.
N.B: Our agreed transfer protocol with the IPCA includes a preliminary step of seeking the
complainant’s consent to transfer. Note, we do not have this with Ombudsman or HDC.
When wil a complaint “more properly” belong with the Ombudsman?
A complaint or part of it wil , or may, fall more properly under the Ombudsman’s jurisdiction
in the following cases:
•
Official information – it is mainly about official information, rather than personal
information (it may be more appropriate for the Ombudsman to initiate the investigation
then partially transfer any personal information to OPC if necessary).
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•
Administrative action – it is mainly about the reasonableness of some administrative
action by a government body or official – for example, if the complainant is unhappy
with the substance of a particular decision or with how they were treated. (Note that the
Ombudsman does not have jurisdiction under the Ombudsman Act for Police, unless it
is a refusal to release OIA, any Police complaint needs to be transferred to IPCA.)
Sometimes complainants (or their lawyer or advocate) may make a complaint about a
decision or process under principle 8 arguments. Assess carefully to determine whether it is
a complaint about checking information before use, or a broader complaint about
administrative fairness. It may be useful to consult on a possible transfer of such a complaint
to the Ombudsman.
In some cases, it may be appropriate for our office and the Ombudsman to run parallel
investigations, where we deal with the privacy aspect and they deal with the other aspect,
and with the two offices keeping in touch during our investigations.
However, our two investigations wil often be working to two different statutory timelines.
Further, this wil require the complainant to deal with two different investigating agencies.
Usually, however, it wil be better for just one agency to deal with the complaint, according
to the nature of the complaint and which agency can best address it.
When wil a complaint “more properly” belong with the Health and Disability
Commissioner?
Examples of where a complaint wil or may more properly belong with the HDC include:
•
Physical privacy – complaints about physical or bodily privacy rather than the privacy
of health information. For example, a complainant may be unhappy about a doctor not
closing the curtains of a cubicle before a physical examination. It is likely HDC would
be better placed to consider a complaint about physical privacy under the Code of
Health and Disability Services Consumers’ Rights.
•
Ethical obligations & competence – a complainant alleging a breach of the privacy
principles by a doctor or other health professional may be mainly concerned about the
health professional’s competence in relation to their ethical obligations around patients’
privacy and information. If the complainant’s concern is not mainly about the
consequences of the breach for them, about any harm, but rather with the doctor’s
ongoing conduct, then it may be more appropriate to have the case dealt with by the
Health and Disability Commissioner.
When wil a complaint “more properly” belong with IGIS?
The IGIS provides oversight of the activities of the New Zealand Security Intelligence Service
(“NZSIS”) and the Government Communications Security Bureau (“GCSB”). Those two
agencies have wide-ranging powers that can affect the privacy of individuals, and the role of
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the IGIS includes ensuring that those powers are used lawfully and appropriately. The IGIS
has substantial powers to access documents and information held by the SIS and GCSB.
Privacy complaints to the Privacy Commissioner about the NZSIS and GCSB may therefore
be more properly within the IGIS’s jurisdiction when they involve broader issues relating to
those agencies’ surveil ance and information-gathering activities.
Referral to IPCA
The Office of the Ombudsman does not have jurisdiction over Police under the Ombudsmen
Act, only the OIA. This means the OOTO can review a refusal to provide information under
the OIA, but the IPCA needs to consider a “reverse OIA” where a complainant complains
about information that Police decided to release under the OIA.
IPCA also considers Police conduct more generally, this could include for example employee
browsing, or issues with release of information through Police vetting checks.
Regarding the process, seek the complainant’s consent to consult on a transfer first. For
further details refer to our agreed transfer protocol.
Referrals to overseas privacy agencies
The Privacy Act reference: section 76
If it looks like the complaint belongs more properly with an “overseas privacy enforcement
authority” then:
•
we
may consult with the overseas agency about this
•
after any such consultation we
must decide where the complaint should be dealt with
•
if we think it belongs with the overseas agency, and if both the agency and the
complainant agree, we
may refer the complaint, or part of it, to the overseas agency.
If we decide to take action on a complaint, consider
whether it can be dealt with as an “Early Resolution”
complaint
In order to ensure we are dealing with complaints efficiently we have identified some types
of files that wil be dealt with through a more streamlined early resolution process.
Generally early resolution complaints can be dealt with as an enquiry.
Early Resolution: No Investigation
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The team member on incoming can consider whether we need to open a complaint file or
an enquiry file for a complaint that on preliminary assessment we do not intend to investigate.
Discuss the proposed approach with the Manager, Investigations & Dispute Resolution
(“MIDR”), or a Principal/Senior Investigator. The investigator needs to ensure any relevant
legal analysis of the issues is recorded on the file somewhere. This could simply be in the
correspondence with the complainant.
Early Resolution
Sometimes we receive a complaint where it appears possible to resolve the matter without
formally investigating. For example, a small agency might not understand its obligations
under principle 6 and we consider a phone call to explain and give advice might be sufficient
to resolve the complaint. Ensure you are clear with the parties whether you are attempting
to settle the complaint under s 77, which wil open a pathway to the Tribunal, or not. If you
are simply making a preliminary enquiry to check whether the agency is open to addressing
the issue without further action by the Commissioner, ensure both parties are advised of
this. You can file this as an enquiry, but ensure that you are capturing the complaint in the
metadata (e.g. declined to investigate reason = unnecessary, outcome = info
released/resolved).
Compliance Advice Letter
There wil be some complaints where we may not consider investigation necessary, but
some action is warranted. For example:
• The complainant wishes to raise issues but does not seek an investigation or facilitated
settlement
• The complainant is not personally affected by the issue
• There is a breach, but no harm
• The complainant wishes to remain anonymous and the issue is broad enough the
agency can consider it without their identity (e.g. a process/systemic issue, or a camera
that is filming in a shared use zone).
It might be appropriate to send a compliance advice letter or to relay our concerns to the
agency in these circumstances. It may be appropriate to discuss this approach with the
complainant first.
Although we cannot investigate an anonymous complaint as being an interference with
privacy, it may be possible to accommodate a request to remain anonymous if we are
sending a compliance advice letter. This would depend on whether we consider the agency
would be able to act on the issue without knowing the identity of the person who brought it
to our attention. If the complainant does not want to be identified or involved in the process,
but we consider it is stil an issue that warrants our involvement, the compliance advice letter
should
not include the complainant’s name.
Easy Access
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A complaint about principle 6 will usually not require a detailed review or assessment before
notifying. This means the complaint should be notified on receipt by the incoming complaints
assessor or investigator. Some files may stil need to be assigned for analysis first, or for an
investigator to speak with the complainant to clarify the scope or issues, particularly if the
individual has raised other privacy principles.
When assessing whether an access request can be notified immediately consider the
following:
• There has been a specific, sufficiently detailed request for information (so it is
clear what we can notify on).
• There is a copy of the request on file, or a copy of the response from the
respondent which makes it clear the request has been made.
• The request was made more than 20 working days ago.
• Adequate contact details for both the complainant and the respondent have
been provided.
• There are no “red flags” (e.g. repeat complainant which may require more
detailed review of other files to ensure we aren’t doubling up, other principles
engaged, obvious mental health issues that mean the complainant would
benefit from a phone call or assignment to an investigator prior to notification,
or any other mat ers that would make early notification without first speaking to
the complainant/carrying out an assessment, undesirable).
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Promoting conciliation and settlement
Overview
One of our key statutory functions is to try to settle complaints. We are therefore always
trying – before, during and after any investigation – to reach a resolution of the complaint
through some form of set lement.
OUR SETTLEMENT TARGET:
Our KPI is to settle
40 percent of all complaints
Conciliation and settlement: Our statutory obligations and
powers
Exploring the possibility of settlement and assurance without
investigating complaint
When assessing a complaint, consider whether settlement may be possible without first
conducting an investigation pursuant to s77.
Consider:
• Has the agency already acknowledged the breach?
• If the reason it has not resolved already is due to a dispute as to harm or quantum,
proceeding straight to conciliation may be the most efficient way to resolve the
complaint.
• Is there a clear or technical breach that does not appear to require investigation?
• Are the parties open to resolving their dispute in a conciliation?
• Has the agency or another regulator already investigate the matter and produced
findings?
If there is a dispute of facts, or the agency does not consider its actions a breach, it is likely
that an investigation would be useful before an attempt to settle. It could either assist the
parties to have a more productive discussion if we first take some investigative steps, or
clarify whether there was in fact an interference that requires resolution.
19
If we cannot secure settlement, we can at that point either decide to investigate, or decline
for either one of the reasons set out in s74, or on the basis that investigation is unnecessary
or inappropriate.
Obligation to promote settlement if a complaint has substance
If we do investigate and if we’ve concluded that the complaint has substance, we
must use
“best endeavours” to try to achieve a settlement.
For access complaints this is set out in s91 and for other investigations, in s94 of the Privacy
Act 2020.
What does the “best endeavours” standard require of us?
The High Court has treated the “best endeavours” standard as being the same as
“reasonable endeavours”
(see below).
“A best endeavours obligation is a substantial one, reflecting the importance that the
legislation attaches to settlement, but it also recognises that there is no single correct
approach. There is much room for subjective judgement about how and when to
promote settlement, and each case depends on its facts. … I think it appropriate to
approach the issue by asking, as [the Commissioner] invited me to do, whether a
reasonable Commissioner could have conducted herself as the Commissioner did
here. That approach assumes that best endeavours is synonymous with reasonable
endeavours, which need not be correct, but the assumption favours the Commissioner
and I do not think anything turns on the distinction.”
Henderson v Privacy Commissioner [2010] NZHC 554 at [98]
The High Court found in that case the Commissioner did not use best endeavours to set le
the complaint, and could not have reasonably concluded that she was unable to secure a
settlement when it was referred to the Director of Proceedings. The Commissioner had failed
to advise the respondent of both an invitation to settle and a substantive settlement offer
made by the complainant, and did not consider calling a compulsory conference.
Promoting conciliation from the outset
As the High Court noted in the
Henderson case, the scheme of the Privacy Act’s complaints
provisions requires us, from the very beginning of the complaints process, to be proactive in
trying to resolve the complaint through conciliation. The Privacy Act 2020 makes it clear we
can try to settle without investigating, and the individual wil stil have a pathway to the
Tribunal.
20
“… the Commissioner must be alert to the possibility that the parties may be wil ing to
settle at an early stage, before the complaint has been investigated and before the
Commissioner is able to offer any guidance on the merits; an obligation to promote
conciliation and settlement arises at the outset.”
Henderson v Privacy Commissioner [2010] NZHC 554 at [101]
In line with that principle, we place a lot of emphasis on early complaint resolution and
settlement. Our aim is to settle complaints, if appropriate, after we’ve made an initial
assessment and contacted the parties to clarify the issues.
In particular, a key question the Investigator wil need to ask of the complainant very early
on is what would resolve the complaint for them.
Tools we can use to try to reach a settlement
There are several tools we can use to promote settlement of a complaint:
1. First teleconference with the complainant and respondent
2. Case management conference
3. Power to call compulsory conference
The Privacy Act gives us the power, under s 85, to call a compulsory conference of the
parties, in order to try to resolve the dispute.
We can only invoke this power when we are investigating. We
cannot use it if we are
exploring the possibility of settlement under s77
We do
not invoke this power when we convene a case conference at the start of an
investigation. Case conferences can be held (usually by telephone) to clarify the issues in a
dispute and work out a process and timetable for our investigation.
What the Act says: Section 85, “Compulsory conferences”
(1) The Commissioner may call a conference of the parties to a complaint by—
(a) sending each of them a notice requesting their attendance at a time and
place specified; or
(b) by any other means agreed by the parties concerned.
(2) The objectives of the conference shal be—
(a) to identify the matters in issue; and
21
(b) to try to obtain agreement between the parties on the resolution of those
matters in order to settle the complaint.
(3) Where a person fails to comply with a request under subsection (1) to attend a
conference, the Commissioner may issue a summons requiring the person to
attend a conference at a time and place to be specified in the summons.
(4) Section 159 of the Criminal Procedure Act 2011 applies to a summons under this
section as if it were a witness summons issued under that section.
Settlements and “party autonomy”: It’s up to them
It’s up to the complainant to decide what wil resolve their complaint. We can make
suggestions – such as an apology, a change in the respondent’s processes, or
compensation – but we can’t require a complainant, or a respondent, to agree to any
particular settlement.
If we conclude that the complaint has substance, we’re then required by the Privacy Act to
use best endeavours to secure a settlement.
Assessing the potential for a settlement
Complaints tend to be much easier to settle at an early stage and there is often a real
wil ingness to resolve them on the part of both sides.
Some complaints simply won’t be amenable to early settlement, even if the complaint itself
seems to be a relatively minor matter.
This can depend on various factors, but often the indicators would include:
•
a complaint where the parties’ views and expectations are at opposite ends of the
spectrum
•
a complainant with unrealistic expectations about the level of a monetary settlement
•
a respondent that is unwil ing to accept and recognise a breach.
Giving guidance to the parties and managing expectations
Be clear about whether you are trying to facilitate a settlement under s77, or whether you
are investigating with an option of conciliation at any time.
The Investigator’s role includes managing the expectations of both sides in order to achieve
a resolution that is acceptable to both. This process may include telephone diplomacy and
22
negotiation, or face-to-face conciliation where the Investigator meets with both parties or
meets with each of them separately.
The Investigator should have an overview of what would be a reasonable outcome in the
context of the parties’ expectations. We’re not obliged to support any unreasonable
expectations that a party might have.
It’s appropriate at all points of the process to provide the parties with reality checks about
the effect of the law, the limitations of our process, and the potential consequences if a
complaint isn’t resolved through our process.
Specific settlement measures
Settlements wil often include:
•
an apology
•
an assurance that the breach won’t be repeated
•
a promise to take action, like training staff and adopting privacy policies
•
money, goods, services or other remediation
•
an agreement to release information.
However, although those are common types of settlement outcomes, we’ve also seen a wide
and creative range of measures over the years – for example, flowers, gift baskets and, in
one case, an overseas holiday for the complainant and their partner. It’s a matter of what
wil resolve the complaint for the particular complainant and respondent. (See Roth at
PVA74.5 of Privacy Law and Practice for examples of settlements.)
The power of an apology
It’s hard to overstate the significance that an apology can often have for
complainants. If given in good faith and taken by the complainant to be
genuine, it can go a very long way to resolving a dispute for them, by
demonstrating to the complainant that their problem has been taken seriously
and that the respondent agency wil take real steps to prevent any repetition.
Giving guidance on financial settlement amounts
Although conciliation usually doesn’t involve a financial settlement, we’re often asked by the
parties what would be an appropriate financial settlement for a particular complaint.
23
We don’t give detailed guidance, as conciliation is about the parties’ deciding what wil
resolve the complaint for them. It’s also in the nature of privacy breaches that they vary
widely, depending on the particular case, so it’s difficult to assign a dollar figure to any
particular breach. However, we can give the parties
examples of specific settlements and
the type or level of breach or harm in each case.
Guidance from Tribunal awards
Awards in the Human Right Review Tribunal wil give some guidance about appropriate
settlement awards.
For a useful discussion of Tribunal awards and relevant principles, see
Hammond v Credit
Union Baywide [2015] NZHRRT 6.
We also have information on our website that you can refer the parties to at any point of the
process.
Inviting comment from the parties: When and how
Investigators need to exercise judgement about whether it’s necessary to invite a writ en
response from a party on a particular issue. This shouldn’t be a standard, reflex step
whenever we, for example, first come to a view about whether a complaint has substance.
Instead, you’l need to consider the needs of the particular case, and what the Act and the
principles of public-law fairness require in that situation.
Burden of proof
The Act doesn’t assign any evidentiary burden to a particular party, and the High Court has
held specifically that the respondent does not have the burden of establishing that an
exception applies (see
Henderson v Privacy Commissioner [2010] NZHC 554).
However, if we ask a respondent agency for evidence of their assertion that an exception
applies, but they refuse to engage with us or don’t give us the information, we’re entitled to
form a conclusion on the basis of the information we have. If in that case we find that the
alleged action or omission
did occur, but we have insufficient information to conclude that
an exception applies, then we are entitled to conclude that there has been a breach.
Key points
In general, you should invite a written response only if:
•
you need more information, or
24
•
you’ve made assumptions and you need to check that these assumptions are correct,
or
•
you anticipate making an adverse comment about that party.
If we’ve found that a respondent agency has breached the Privacy Act the statutory “adverse
comment” rule wil require us to present this to them in writing as a preliminary view and to
invite them to respond in writing within a reasonable time.
If we’ve reached a view that a complaint doesn’t have substance, the “adverse comment”
rule doesn’t apply. However, consider public-law principles of procedural fairness and
natural justice mean when assessing whether a complainant requires an opportunity to
comment on any view we formed.
The “adverse comment” rule: Its scope and effect
Summary
In the context of our investigations function, the effect of the statutory “adverse comment”
provision is that we must give a respondent a reasonable time to respond in writing if, after
investigating a complaint, our view is that the respondent has breached a privacy principle
or rule.
Usually the “adverse comment” rule
won’t require us to give a complainant a similar
opportunity if we’ve found their complaint doesn’t have substance.
What the Act says: Section 210, “Adverse comment”
“The Commissioner shal not, in any report or statement made pursuant to this Act or
the Crown Entities Act 2004, make any comment that is adverse to any person unless
that person has been given an opportunity to be heard.”
Scope of the “adverse comment” rule: What statements does it apply to?
The scope of the adverse comment rule includes notifications of the result of an
investigation. This means that an Investigator cannot notify the parties of a finding that the
respondent has breached a privacy principle or rule unless the respondent had been given
the opportunity to respond to this potential finding.
What makes a comment “adverse”?
A comment wil not be “adverse” to someone simply because it goes against their interests
or rejects an allegation or legal argument that they’ve put forward:
•
A finding that a respondent agency has breached a privacy principle or rule
is an
adverse comment.
25
•
A finding that a complaint has no substance is
not of itself an adverse comment
against the complainant.
•
However, some additional or more specific comment about an unsuccessful
complainant
could be an “adverse comment” – for example, if we told them we believed
they had intentionally lied to us.
Discharging our obligation under the “adverse comment” rule
To discharge the “adverse comment” obligation, we should:
•
notify the party in writing of our preliminary finding, including giving reasons for it
•
invite them to respond in writing
•
give them a reasonable time to respond.
Setting a timeframe for a written response
Always ask for responses to be provided by a certain date.
If an agency or an individual cannot respond within the timeframe provided, we may give an
extension. Any extension should be for no more than a reasonable time. We can’t keep files
open indefinitely.
Public-law fairness: What it requires
Public-law principles of procedural fairness or natural justice require that our findings must
have a reasonable basis. Our investigation processes must therefore be reasonable, and
usually this wil require us to inform the relevant party of our findings and the reasons for
them, and to give them a chance to comment (see Roth,
Privacy Law and Practice, at
PVA75).
However, those natural justice steps don’t have to follow an inflexible format that is formal
and time-consuming. Usually formal writ en correspondence and a set response date won’t
be necessary – unless the statutory “adverse comment” rule also applies, as it wil where
we’ve found a breach (see above). This means that, where we’ve found that a complaint has
no substance, it wil usually be suf icient to have a phone conversation with the complainant
where we explain our decision and ask if they have any further to add in response. You
should also consider whether there a complainant actually has any meaningful ability to
comment. For example if we have reviewed withheld information and it’s not personal
information, it is unlikely a complainant wil be able to comment on this as they can’t see
what has been withheld, nor can we disclose withheld information to them.
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This wil be a matter for the investigator’s discretion. It wil depend on the particular complaint
and complainant. You’l need to consider whether the process has been fair to both parties
and whether the finding you’ve come to is sound.
Notifying the result of our investigation
What the Act says: Section 98 –
An aggrieved individual must bring a complaint to the Tribunal within six
months of being given notice by the Commissioner that we have closed our
complaint.
A respondent must file an appeal to an access direction within twenty working
days of being given notice.
Our communication to the parties that we wil be taking no further action or we have reached
the end of our process wil impact the complainant’s ability to take proceedings in the
Tribunal and the Respondent’s ability to file an appeal to an access direction.
There are specific legislative time limits, so we need to ensure our records are accurate and
our correspondence is clear.
You
must inform the complainant or the respondent agency (for an access direction) of the
timeframe to take proceedings in the Tribunal when you give notice that you are closing the
file. (Note, this only applies where we have notified the parties – if we declined to either
investigate or try to settle then they have no pathway to the Tribunal.)
You must also ensure you provide the complainant with a “section 98 notice” and in your
correspondence with both complainant and respondent advise of the section you are
notifying your decision to take no further action under. There is a “section 98” template you
can use for this purpose.
The section 98 notice can be sent as an email or a letter. Bear in mind the complainant must
submit this notice to the Tribunal when the file. For that reason, it is probably preferable that
the notice is separate from your substantive view, particularly if you are discussing sensitive
information (e.g. harm, matters not included in the investigation or findings that go against
the complainant).
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Referrals to the Director of Human Rights Proceedings
Overview
We may refer a complaint to the Director of Human Rights Proceedings, so that they can
decide whether to take action in the Human Rights Review Tribunal.
Failure to settle – a statutory precondition for referral
Sections 78, 84, 91(5)(b), 91(6) and 94(4) and (5) allow us to refer a complaint to the Director
with or without investigation
only if we’ve been unable to achieve a settlement
or if the
agency has not complied with the terms of a previous settlement or acted in contravention
of any term of a previous settlement or assurance (s78(b) and (c)).
Regardless of whether we think it would be desirable for the Tribunal to set a precedent on
this issue, we
must try to achieve a settlement. Only if we’re not able to do this (or if the
terms of a set lement have not been complied with) can we then refer the complaint to the
Director.
Our criteria for referral
We may decide to refer the complaint to the Director if it involves the following factors:
•
seriousness of the issue
•
continuing harm
•
an impact on a larger number of people
•
unreasonable conduct by the respondent
•
an opportunity to set a precedent in respect of a novel or significant issue of law.
We may decide not to refer the complaint if:
•
it involved an information request and the information has now been provided
•
there are no systemic issues or major concerns, or any systemic issues or concerns
have now been addressed by the agency
•
the complainant hasn’t suffered a loss for which a remedy is required.
Is the case ready to go to the Director?
We will usually refer a complaint to the Director only if we have already developed the case
to an advanced stage. Although we do not have to provide the Director with a complete case,
28
the Investigator should be confident that there’s enough evidence to establish a case in the
Tribunal.
Specifically, before we can consider a case for referral the Investigator should have:
•
established a clear factual chronology
•
established that the evidence the Director wil need wil be available – the Investigator
should know that the necessary witnesses wil be available and should know what they’l
say.
Case notes on referral
•
No 71808 (2006) – local residents and a property developer
•
No 89271 (2007) – daughter’s photo from school holiday programme
•
No 92895 (2008) – court employee disclosed info to the ex-partner of a man who had
contacted the court about making an ex parte application
•
No 204595 (2009) – couple complained about their accountant
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Initial call checklist
Office of the Privacy Commissioner – Introductory Discussion
Checklist
The role of the investigator
Completed
1. The Investigator is
independent, neutral, not an advocate for either party
2. The Investigator’s role is to
communicate between parties to help them try
and reach a resolution
3. The Investigator has no decision-making power in general.
However, note that
if it is an access complaint we can issue a direction – explain what this means.
4. Investigator cannot
disclose information it receives from one party to the
other party and our communications are not personal information you can
request. It is the respondent agency’s responsibility to provide information
directly to the complainant – we cannot pass information between parties
Complaint process
5. Explain the process:
Eg do we consider an investigation warranted or could this be conciliated? If
investigation, advise we would notify but our focus would be on settlement
where possible. Discuss other options as relevant – eg compliance advice
letter.
If it is an access complaint, explain that our approach would be to carry out an
independent, impartial review of the information. We wil then advise the parties
of our view (either release or withhold some or all). If complainant does not
accept our view, they could proceed to HRRT.
If we find a breach, C wil need to provide evidence of harm.
6. The complaint can be
settled at any time during the process
7. The complainant can
withdraw the complaint at any stage (although this may
have consequences for bringing a complaint in the Tribunal)
8. If the complainant accepts an offer from the respondent, it is in full and final
settlement of the complaint
9. Our final views are persuasive but not binding. If the complainant wishes to
pursue the mat er, they may do so in the HRRT. If we issue an access direction
and respondent does not comply complainant can enforce in the HRRT. Note
that respondent could appeal an access direction.
30
10. Check the complainant has received the
information sheet (if this hasn’t been
sent already, send a copy to complainant along with any other relevant
information sheets or brochures)
11. The
timeframe for looking into your complaint can vary. It can depend on the
parties wil ingness to resolve the matter, information needed, whether experts
are required, whether a final view is needed. We try to finish most investigations
within six months
12. Discuss
confirmation of complaint
Contact details
13. Check
contact details – e.g.:
a. Check the spelling of the complainant’s name
b. Do you have all the necessary contact details?
c. Is there a best time or way to contact the complainant?
d. Is it ok to leave a message on the phone?
Note: highlight on file if any contact details are to be kept CONFIDENTIAL
14. Check the complainant is
entitled to bring the complaint
15. Confirm the complainant has
your name and
contact details
16. Tell complainant when you
next plan to be in contact with them
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Checklists for conciliation and
settlements
Preparing for a settlement conference
Be absolutely clear about where we are with the complaint. Have we completed our
investigation? Are we satisfied we have all the information we need? Or are we stil open
minded, and prepared to investigate further? Is the process designed to
elicit information for
our investigation (eg the level and nature of harm).
Here are some other questions for you to consider when you’re preparing for a set lement
conference:
Process issues
•
Does the conference need to be in person, or would by phone be just as good or better?
•
Are there any barriers to communication? Do we need an interpreter or other
assistance?
•
Does the complainant need a support person? Wil the numbers on each side of the
table be equal?
•
Is the venue neutral and mutual? Are there breakout rooms? Wil there be tea, coffee,
water? Is parking available?
•
Have you allowed plenty of time for the meeting? Better to book three hours and finish
early than run out of time drafting an agreement.
Preparing the parties for the conference
•
Are the parties and you the Investigator all in agreement about what is in dispute?
Would it be useful to prepare a statement of agreed facts and details before the
conference?
•
Do the parties have a shared understanding of the purpose of the meeting?
•
Have the parties each been sent an “expectation” letter? (These letters should set out:
the date, time and venue for the meeting; who wil attend; the purpose of the conference;
what wil happen at the conference; some ground rules for how it wil run, like taking
turns to speak and not interrupting.)
32
link to page 33
•
Has the Investigator been through the “Preparation for Conciliation Conference Toolkit”
7
with both parties and sent them a copy to work though on their own before the meeting?
•
Does the respondent have authority to settle?
•
Is the respondent ready to talk about policies or procedures?
•
Do we have an agenda or list of questions that the parties want to work through?
•
Does the complainant need to bring evidence of harm?
Preparing yourself
•
What approach wil you use for the conference? Is one person going to lead the
conversation or wil you use some alternative model?
•
Do you know the file frontwards and backwards?
•
Have you looked at similar complaint settlement outcomes?
•
Can you use case notes or tribunal decisions to guide the parties towards each other?
•
Do you have a draft settlement agreement ready to go?
•
Do you have all the evidence needed to make a finding or reach a settlement?
During the investigation
Task
Completed
Date
Ensure parties understand the complaints process and how
settlement conference fits within that – explain this at the outset
of the investigation or the advice that we are attempting to settle
instead of investigating.
Ensure parties understand how the law applies to the complaint –
make it clear what principles/rules are engaged and why.
Also ensure parties understand what issues we do not have
jurisdiction to consider and why
Get information from both C and R as to their view of the
complaint and attempt resolution without making a determination
where possible
Ensure parties understand OPC current assessment of complaint
This may include the following–
7 Add OBJ reference
33
• send a preliminary view and discuss this view with both
parties over the phone (where possible)
• Ensure that all relevant information about the breach is
obtained from R and that C’s harm is provided to R in
advance
• Ensure that C knows R’s position on the complaint
• Ensure that all parties are aware of what C is seeking to
resolve, and that both have realistic expectations about the
likely outcome
• Review feedback from both parties
During the investigation (continued)
Review complaint with Investigations Team and consider whether
there are any other options for resolution that have not been
attempted. If not, get a clear understanding of OPC’s position on
the complaint (conduct any necessary research and be ready to
form a final view if necessary)
Investigator to review file and decide if settlement conference
appropriate (consider facts, parties, likelihood of resolution,
resources and whether there are any special requirements of the
parties to be aware of e.g. security/panic buttons or two OPC staf
for any dif icult behaviours)
Discuss whether both parties are open to the possibility of
settlement conference
Get approval from MIDR/Assistant Commissioner/General
Manager for settlement conference if there wil be a significant
cost
Before the settlement conference
Task
Completed
Date
Get agreement from parties as to the time, date, location, format,
needs and attendees. Advise both parties who wil be attending,
including a support person for C if desired, any additional OPC
staff members (including appropriate support for Investigator if
required) and ensure that the appropriate technical experts/levels
of delegation from R are attending
34
If there wil be travel involved (with a cost - flights/rental car),
confirm details with MIDR/AC and get assistance from support
staff to book meeting rooms and make travel arrangements
Confirm in writing for both parties once all details finalised.
Advise that if for any reason they are unable attend, they must let
the Investigator know as soon as possible
Review the file again with Senior/MIDR and prepare for
settlement conference (ensure all of the above steps are properly
completed and that we have all of the relevant information, have
completed the investigation and have formed a preliminary view)
Investigator to call both parties separately and ensure they are
prepared for the settlement conference and know what to expect
Before the settlement conference (continued)
Provide documents to parties in advance - agenda, relevant law,
case notes and case law and allow time to review and comment
Call both parties separately the day before the settlement
conference to ensure understanding of the process and focus on
resolution
Take the file with you (if it can be done securely) and ensure that
you have the address and contact details for the venue, and
contact details for both parties
Arrive at the venue early to ensure meeting room is set-up
appropriately
During the settlement conference
Task
Completed
Date
Welcome and introduce parties
Explain at the outset:
• Thank parties for attending, acknowledge it has been done
voluntarily, explain the benefits of a voluntary resolution and
acknowledge how difficult it may be (especially for C)
35
• Acknowledge there may be difficult material discussed and
that this should be done with respect, and that anyone can
ask for a break at any time
• Set out the format for the settlement conference
• Encourage content and involvement that wil aid resolution
(not a forum for testing evidence or credibility)
• Encourage constructive communication (no interrupting when
others are speaking, no blame etc.)
• Encourage a range of possible resolution options that are
based on needs and interests
• Prepare parties for potential to compromise
• Phones off
• Confidentiality requirement
• Explain how this process differs from OPC making a final
determination and what the outcome could be if it is not
resolved
• Anything else required in introduction that is relevant to the
complaint (OPC view of the complaint, summary of relevant
principles etc.)
Ask C to start by explaining the complaint from their perspective
and what they are seeking to resolve their complaint
Clarify issues as required and confirm that C has had an
opportunity to express everything they wanted to
Ask R to continue by responding to C and explaining its view of
the complaint
Clarify issues as required and confirm that R has had an
opportunity to express everything it wanted to
Set out OPC view of any disputed issues (if required or it wil
assist)
Al ow C a chance to respond
Move into focusing on resolution (can be done in a variety of
ways)
Take notes of relevant points throughout
Bring parties together at conclusion, summarise agreed
outcomes, thank parties for their participation and agree on next
steps
36
Draft and complete Settlement Agreement if possible
After the settlement conference
Task
Completed
Date
Make a detailed file note about the discussions including any
agreed outcomes
Call both parties to debrief and confirm understanding
If resolved at settlement conference:
Draft Settlement Agreement for MIDR approval (if not done during
settlement conference which is preferable where possible) and
finalise any agreed outcomes
Send Settlement Agreement to R for approval and then send to C
for signature (send two copies to C if they also want an original)
C to send completed Settlement Agreement straight to R. R to
sign and send a completed copy to OPC and C, and arrange for
implementation of any agreed outcomes
Review complaint and close file
If not resolved at settlement conference:
Debrief with MIDR
Agree on next steps in the investigation (if any) or advise parties
if you decline to investigate further.
37
Document Outline
