Earthquake Commission v Marc Allen Krieger & Unknown Defendants
Wellington High Court
13 and 27 November 2013
This decision involved a self-appointed whistle blower who sought to reveal spreadsheets of data relating to claimants to the New Zealand Earthquake Commission (EQC) in the aftermath of the 2010 and 2011 Christchurch earthquakes. The decision deals with very interesting issues relating to the public interest defence to breach of confidence and the intersection between breach of confidence and freedom of expression guaranteed by the New Zealand Bill of Rights Act 1990.
EQC is a statutory body established by the Earthquake Commission Act 1993. It administers insurance against damage caused by natural disasters. Premiums, set by regulations are paid to EQC by insurance companies. The commercial sensitivity of EQC’s business is illustrated by the fact that all information about the premiums which insurers pay to EQC is subject to strict secrecy provisions as set out in s25 of the Act.
On 4 September 2010 and 22 February 2011, Christchurch and its surrounding areas were devastated by powerful earthquakes. By September 2012, Fletcher EQR, an EQC contractor, had collated information relating to approximately 83,000 claims. EQC condensed this information into a spreadsheet which contained 30 “fields” of information about each claim, including information about individual claims, information of a commercial nature, and administrative information.
On 22 March 2013, an EQC employee included the spreadsheet as an attachment to an email and inadvertently sent the spreadsheet to an earthquake repair contractor in Christchurch. EQC took steps to secure that information.
In April 2013, an article appeared on a website called “EQC truths”. The author of that website said that he received an email from a disgruntled EQC employee containing the same information that had been sent to the contractor on 22 March 2013, and shortly after that published instructions about how EQC claimants could access information contained in the spreadsheet. The information collated in the spreadsheet contained personal details of individual claimants. The fields of information contained precise addresses, the status of the claim and the estimate cost of repairs as assessed by EQC.
EQC is subject to the Official Information Act 1982. However in 2012, the Chief Ombudsman declared that EQC was not required to provide claimants with information relating to the estimated cost of repairing their property. EQC was entitled to withhold that information to enable it to discharge its functions in a commercially prudent manner.
On 8 and 9 April 2013, Collins J issued first orders prohibiting disclosure of the spreadsheet and then interim injunction orders prohibiting:
1. Recipients of the information in the spreadsheet from disclosing it to any other person; and
2. The author of the website from disclosing information about identifiable EQC claimants to others.
Notwithstanding this, the author of the website published articles on the website with hyperlinks to five different websites which contained the spreadsheets. This material was still available on three of those websites as at 22 October 2013. This enabled anyone to access information about individual claims that were administered by EQC.
In an amended statement of claim, the plaintiff identified the first defendant, Mr Krieger, and alleged he was the person who had disclosed the information in the spreadsheet. On 26 June 2013, Mr Krieger filed a memorandum which the Court treated as a statement of defence. This:
• Acknowledged that he was the author of the website and that he had received a spreadsheet similar or perhaps identical to the one sent by EQC to the contractor.
• Asserted that the information in the spreadsheet was not confidential.
• Contained an acknowledgement that he was aware of the interim orders issued on 9 April 2013 but claimed the orders exceeded the High Court’s authority because the information in the spreadsheet contained public information and the interim order breached his freedom of expression in the New Zealand Bill of Rights Act 1990.
• Contained an acceptance that after 8 April 2013, he published information on the five websites where the contents of the spreadsheet could be found; and
• Set out the reasons why he objected to any relief being granted.
In the proceedings before the Court, EQC sought a declaration and permanent orders. The Solicitor General brought separate contempt proceedings in respect of disclosures of the spreadsheet. As a consequence, EQC elected to no longer seek damages from Mr Krieger. In subsequent communications with the Court, Mr Krieger stated he was residing in Switzerland and that he was boycotting the proceedings because the Court lacked jurisdiction.
The two principal questions raised by the proceeding were:
1. Was the EQC entitled to a declaration that Mr Krieger disclosed information in circumstances that constituted a breach of confidence; and
2. Should permanent orders be issued prohibiting any further disclosure of the information in question by anyone other than EQC.
Also considered were:
3. Whether EQC, because of its role within Government and because of the nature of the information it wished to protect, needed to establish that disclosure of the information in question was not in the public interest; and if not,
4. Whether Mr Krieger had a public interest defence.
5. Whether EQC’s proceeding attempted to unlawfully breach Mr Krieger’s right to freedom of expression guaranteed by s14 of the New Zealand Bill of Rights Act 1990.
Held, issuing (a) a declaration a Mr Krieger had breached his obligation to keep the information contained in the spreadsheet confidential; and (b) a permanent injunction restraining Mr Krieger from disclosing the information contained in the spreadsheet:
A. Breach of confidence
(1) The three elements of breach of confidence are:
(a) The information must have the necessary quality of confidence about it;
(b) The information must have been imparted in circumstances importing an element of confidence; and
(c) There must have been an unauthorised use of the information.  to 
(2) Where the information in question relates to the workings of Government and the plaintiff is part of the Government, the plaintiff needs to establish that restraining disclosure of the information is in the public interest. This is because it acts not according to the standards of the private interest, but the public interest. 
(3) Where this is not the case, and a public body wishes to protect information on the grounds of commercial confidentiality, it may not be necessary to establish that retraining publication is in the public interest. Distinguishing between governmental and genuine commercial information may not be an easy task.  In acquiring private information, agencies of Government may also have a duty to protect the information in question and through that duty have grounds in equity to prevent others from using that information without authority.  Where, because of the nature of the information in question, a plaintiff that is part of Government does not have to establish that it is in the public interest to protect the information, a defendant may still successfully raise a public interest defence. 
Did the information in the spreadsheet have the necessary quality of confidence?
(4) Personal information is often characterised as intimate aspects of a claimant’s personal life, such as their medical information or details of their personal relationships. However, personal information did not have to be about a particularly intimate subject matter to qualify as confidential. Details associated with insurance claims for damage to a person’s residential home was personal information that was analogous to the traditional categories of private information that had been classed as confidential.  The information in the spreadsheet was confidential because of the nature of the details it contained. It was not in the public domain, and it was the product of work done by EQC or its contractors. 
Was the information supplied to Mr Krieger in circumstances that imported an obligation of confidence?
(5) Mr Krieger must have known at the point he received the spreadsheet from “a disgruntled EQC employee” that he was not authorised to receive it. 
Statements on his website and subsequently, demonstrated that he knew the spreadsheet contained information that was confidential and that he had a duty under the Privacy Act not to disclose it.  –  It contained information that clearly identified individual claimants through their street numbers and the likely cost of remedying the damage to residential property, land and personal property. 
(6) The fact that Mr Krieger was a third party recipient of the spreadsheet did not relieve him of a duty of confidence. All that was required for a duty of confidence to arise was for the recipient of the information to be on notice that it was confidential. 
Was there an unauthorised use of the information?
(7) The conventional test to determine whether confidential information has been misused was whether the conscience of the recipient of the confidential information should have been troubled by disclosing it. However, certain courts have endorsed a proportionality test as more appropriate. 
(8) Mr Krieger believed he was acting with a clear conscience when he disclosed what, at the time, was commercially sensitive information about the costs of repairing individual claims. However, he also appeared to have had some appreciation that releasing the spreadsheet involved disclosing private information that should only have been disclosed with the consent of the claimants concerned. In any event, the test was not what the actual state of his conscience told him, but what it should have been telling him. 
(9) Those who were affected by the EQC’s decision and who had a legitimate interest in knowing how their claims were being assessed by EQC had the option to apply for access to the information through the Official Information Act 1982. This was the appropriate course to pursue even if all information held by the EQC did not have to be released. It was not for Mr Krieger to take it upon himself to tell the world at large about the details of individual claims.  Someone in possession of such information was not entitled to decide unilaterally that public interest warranted disclosure. Instead the proper course was to put the issue to the Court. Self-help was the very antithesis of the rule of law.  Mr Krieger had chosen to disregard the interim order and to devise means through hyperlinks to disclose the contents of the spreadsheet. 
(10) Applying the reasonable recipients’ conscience test, Mr Krieger had disclosed the information in question without authority and in doing so misused the information he had received.  to 
Did the EQC have to establish that restraint of publication was in the public interest?
(11) This enquiry involved examination of:
(a) EQC’s proximity to central government; and
(b) The nature of the information in question.  to 
What was EQC’s proximity to central government?
(12) Government departments and organisations that are in close proximity to the executive branch of government are more likely to possess information that relates to the workings of Government than organisations that are remote from it. 
(13) The statutory mechanisms through which EQC was accountable to and could be directed by, the executive led to the conclusion that while the EQC was not a government department, it was nevertheless an integral part of New Zealand’s central government. 
What was the nature of the information in question?
(14) The fact that the information which EQC wished to keep confidential included genuine commercial and private information, led to the conclusion that the information in the spreadsheet was not information “relating to government”. Accordingly, EQC did not have the onus of establishing that restraint of publication was in the public interest. 
Did Mr Krieger have a public interest defence?
(15) In order to succeed with this defence, Mr Krieger had to show that the public interest in disclosing the information in the spreadsheet outweighed the interest of EQC (or the public generally) in keeping it confidential. This involved a balancing exercise.  The information in the spreadsheet would not allow the public to discuss, review and criticise Government policy. The spreadsheet was an integral part of EQC’s performance of its commercial functions.  –  The interest that EQC and the wider public had in keeping the information contained in the spreadsheet confidential outweighed any public interest in disclosure. .
B. The defence of freedom of expression – New Zealand Bill of Rights Act 1990
(16) Restraining publication of the spreadsheet limited Mr Krieger’s right to freedom of expression guaranteed by s14 NZBORA including the right to hold opinions and to receive and impart information and ideas without interference from public authorities. The value of freedom of expression when scrutinising government decisions is a bastion of democracy.  and 
(17) The limitation on Mr Krieger’s freedom of expression that would result from an injunction had to be proportionate to the interests served by the injunction. The proportionality could be tested by the Oakes Test: Did the order sought meet a recognised and pressing social need? Did it negate the primary right or restrict it more than necessary? Were the reasons given for it logical? 
(18) A restriction of Mr Krieger’s freedom of expression was rationally connected, and in due proportion to, EQC’s objective of protecting commercially sensitive and private information because restraining publication would limit the public’s access to the public information it contained. Further an injunction did not go further than necessary to achieve the aim. The limit on Mr Krieger’s freedom of expression only related to the contents of the spreadsheet, and did not prevent him expressing opinions on EQC or the government generally. 
(19) It was also important to consider the nature of the relationship that gave rise to the duty of confidence. When Mr Krieger obtained the spreadsheet, he knew it contained confidential information and obtained it in circumstances where he appreciated others had breached their duty not to disclose it. In the circumstances, the limits imposed by an injunction were demonstrably justified. 
(20) Further, there were other ways of obtaining the information without breaching duties of confidence. This included applications through the Official Information Act 1982, including the role of the Ombudsman in reviewing decisions to withhold information. 
(21) A declaration was granted that Mr Krieger’s disclosure of the spreadsheet constituted a breach of his obligation to keep information in it confidential. 
(22) To decline relief would create a perverse incentive for potential defendants to disseminate confidential information as widely and publicly as possible, if that would be effective in denying a plaintiff any relief in a breach of confidence action subsequently brought. 
(23) Where material had already been revealed to the public, but an injunction was still sought, the courts might take different approaches to the treatment of personal information and commercially sensitive information. Courts were more willing to take a less restrictive approach to commercial information, whilst recognising there might be continuing utility in restraining private information.  and 
(24) A permanent injunction would not be futile because of the extent of disclosure to date. As the process involved in assessing claims was ongoing, further revelations of confidential information were likely to continue to cause damage to the individuals involved. 
(25) But for the continuation of the desire to protect the private information of individual claimants, the Court would have been reluctant to issue a permanent injunction.