What needs to be said

A refresher on veterinarians’ rights and responsibilities when it comes to divulging client information.

In October 2017 the New Zealand Office of the Privacy Commissioner published a document called Releasing Personal Information to Police and Law Enforcement Agencies: Guidance on Health and Safety and Maintenance of the Law Exceptions.

The guide offers detailed information on dealing with situations where you are asked to release personal information without a client’s consent. The online publication includes a ‘quick guide’ to help determine if you should release information and what it should include.

The release of this document seems like a good time to review your responsibilities and obligations and outline some of the types of request you might receive.

As veterinarians, we are well versed in the need to keep client records confidential. There are, however, situations where divulging information without a client’s consent is right and correct and inside the law. Requests may be received through a variety of channels, but regardless of how they are received, please remember to keep clear and accurate records of the requests and any release of information.

You may need this information if a release is subsequently challenged.

Verbal requests

Under some circumstances, information may be provided following a verbal request from an inspector warranted under the Animal Welfare Act 1999 (an Animal Welfare Act inspector), an animal control officer, or the Police.

Examples of information that might be released following a verbal request include:

• whether a person was a client at the veterinary clinic
• if there was a history for the animal in question
• if an animal has presented to a veterinary clinic.

Note: No client or animal details need to be included, just a yes or no.

Request for information under the Privacy Act 1993, Principle 11(e)(I): Avoiding prejudice to the maintenance of the law

Subsequent to confirmation of the above (that a person was a client, that there is a history for an animal, or that an animal was presented to the clinic), relevant authorities may make a request to a veterinary clinic to have client and animal details released to them in order to pursue an investigation that relates to the client.

In this instance, the request should be made in writing by the applicant and should state the following: “Pursuant to Principle 11(e), Privacy Act 1993, and based on a suspected offence against the Animal Welfare Act 1999, a request is made for the records for INSERT NAME and the animal under their care, known as ‘INSERT NAME’”.

A specific time frame relating to the records requested may or may not be included. Once the written request has been received, information held by the veterinary clinic can be released.

The Privacy Commission’s document explains this principle more completely than space allows, and I recommend that you read it in full. However, there are a couple of key points that are worth noting:

As stated in the document, “This exception lets you disclose personal information in circumstances where there would otherwise be a prejudice to the maintenance of the law.

“The maintenance of the law exception does not give Police or other law enforcement agencies the right to access any information they would like in order to maintain the law. Nor does it allow agencies to give general assistance with law enforcement investigations by providing relevant information on request. It only applies to situations where not providing specific information would prejudice or be detrimental to enforcing the law.”

Note: The person requesting the information must make a specific request – ie, state the client’s and the animal’s names. They cannot embark on a fishing trip for information. Under Principle 11(e), veterinarians must believe (and demonstrate it if they are subsequently challenged) that there are ‘reasonable grounds’ to release the information – accordingly, veterinarians must be provided with sufficient information to allow for this decision-making. Principle 11(e) does not allow carte blanche requests.

Also, the person (or agency) requesting the information must show the link between the requested information and the offence being investigated.

The document includes a good self-test: “Ask yourself what the effect would be if the information requested was not provided – would it prevent an investigation commencing or continuing?

Are there circumstances that mean an investigation would be prejudiced without access to the information sought?”

Veterinarians should also be aware that while a clinic may be acting within the law (under Principle 11[e]), that won’t necessarily stop retribution attempts. So although you are acting within the law, the client may still make a complaint to the Office of the Privacy Commissioner.

A request for information under Principle 11(e) is not enforceable. If a veterinary clinic feels there is a reason not to release information, it does not have to.

Production order

Under section 71 of the Search and Surveillance Act 2012 (SAS), a production order may be issued to retrieve information.

Specific details must be provided and are detailed in sections 71 and 72.
The production order must detail the suspected offence and the supporting evidence and include a description of the documents required (see at right for more detail).

Unlike a request for information under Principle 11(e), a production order is an enforceable order, and failure to provide the required information (assuming the production is true and complete) is an offence against section 174 of the SAS.

A production order is a request for information. It is a legal requirement to comply, but the information can be provided in one’s own time, and there is no provision within the order for the requesting person to search a premises.

Search warrant

A search warrant may be issued when there is an investigation of a suspected offence.
Offences are not limited to offences under the Animal Welfare Act 1999.
Details of how a search may be executed, what may be seized and who can assist are contained in section 110.

In essence, a search includes anything that is detailed in the search warrant, items of uncertain status and items of relevance in plain view. It also includes bringing people, dogs and equipment to the search location if this assists in executing the warrant.
The search is entirely in the control of the person to whom the warrant has been issued, and one may not obstruct the person who is executing the warrant.

Search and surveillance Act 2012

s71 Enforcement officer may apply for production order

An application under this section must be in writing and must set out the following particulars:

1. The name of the applicant.
2. The provision authorising the making of an application for a search warrant in respect of the suspected offence.
3. A description of the offence that it is suspected has been committed, is being committed, or will be committed.
4. The facts relied on to show reasonable grounds to suspect that an offence has been committed, or is being committed, or will be committed.
5. A description of the documents for which production is sought.
6. The facts relied on to show reasonable grounds to believe the documents sought are in the possession or under the control of the person against whom the order is sought.
7. Whether the person against whom the order is made should be required to produce:
   1. on one occasion only, those documents for which production is sought that are in his or her possession or under his or her control when the order is made; or
   2. on an ongoing basis, those documents for which production is sought that are in his or her possession or under his or her control at the time the order is made, and those documents for which production is sought and that come into his or her possession or come under his or her control at any time while the order is in force.

s72 Conditions for making production order

The conditions for making a production order are that there are reasonable grounds:

1. to suspect that an offence has been committed, or is being committed, or will be committed (being an offence in respect of which this Act or any enactment specified in column 2 of the Schedule authorises an enforcement officer to apply for a search warrant); and
2. to believe that the documents sought by the proposed order:
   1. constitute evidential material in respect of the offence; and
   2. are in the possession or under the control of the person against whom the order is sought, or will come into his or her possession or under his or her control while the order is in force.

s174 Failing to comply with production order

1. Every person commits an offence if he or she, without reasonable excuse, fails to comply with a production order.
2. Every person who commits an offence against subsection (1) is liable on conviction:
   1. in the case of an individual, to imprisonment for a term not exceeding one year
   2. in the case of a body corporate, to a fine not exceeding $40,000.