Dear Office of the Ombudsman,

I am writing to you to seek information regarding decisions made by your office and clarification with regard to the Ombudsman's guidelines "Managing unreasonable complainant conduct".

(1) I request a copies of decisions which led to the Ombudsman creating the guidelines "Managing unreasonable complainant conduct". If this decision is publicly available, a refence to the online decision and where to find it will suffice.

(2) Does the Ombudsman's guidelines "Managing unreasonable complainant conduct" sanctioned, either explicitly or implicitly, unlawful interception of private communications as defined under Section 216A and 216B of the Crimes Act 1961?

The Crimes Act describes the unlawful interception of personal communications as the interception of personal communications without the consent of the sender (e.g., patient) to the intended recipient (e.g., specified physician) when the individual who is intercepting the communications does not have statutory authority as set out in s 216B of the Crimes Act 1961. Statutory permission is restricted individuals and must be authorized under acts such as the Search and Surveillance Act, Corrections Act, and Intelligence and Security Act.

(3) If the Ombudsman' guidelines "Managing unreasonable complainant conduct" sanction, explicitly or implicitly, the unlawful interception of communications, I respectfully request that you provide the page number and section number.

(4) Has the Ombudsman, either explicitly or implicitly, made a decision in which they sanctioned the unlawful interception of personal communications, as defined under the Crimes Act 1961?

(5) In the event that the Ombudsman has sanctioned, either explicitly or implicitly, the interception of private communications without the consent of the individual, or the intended recipient (see sections 216A-B of the Crimes Act), I request a copy to the decision or reference to where the decision can be found publicly.

Thank you.

AS Van Wey

Dear Office of the Ombudsman,

I would like to thank you for your response dated 3 Feb 2023, where you stated:
"I confirm it is simply not the role of an Ombudsman to permit or to authorise any search or
surveillance functions, lawful or otherwise, by or on behalf of executive government agencies.
Information about an Ombudsman’s roles, functions and powers can be found in the Chief
Ombudsman’s most recent annual report.

To the extent that you may be interrogating, directly or indirectly, the contents of the
Ombudsman’s ‘Managing Unreasonable Complainant Conduct’ manual, you may review the
manual for yourself at the above link. For obvious reasons, nothing in that manual is intended to
endorse, recommend, or warrant behaviour that is otherwise unlawful. Indeed, a key and
pervasive message throughout the manual is that agencies should do their best to be fair and
reasonable even when presented with unreasonable behaviour, and that all complainants should
be treated with fairness and respect."

Then please explain your decision on the matter Ref# 519505 (ground 519509) for stating that it was "reasonable" for a member of Waikato DHB to intercept the personal communication of a patient sent to their physicians (or any other member of Waikato DHB, now Health NZ Waikato), without the patient's consent (the sender's consent) or the consent of the intended recipient's consent (the specified physician or other personnel, such as schedulers, Clinical Records team, and DHB management). This conduct is consistent with an offence under section 216B of the Crimes Act 1961.

Waikato DHB has written to the Privacy Commissioner (Complaint C31126) stating that the interception without the consent of the sender (patient) or the intended recipient (physician) was approved by the Office of the Ombudsman and in accordance with the Office of the Ombudsman's policy. They stated that the Ombudsman found it "reasonable" for them to implement their "communication plan". The "communication plan" consistent with section 216B of the Crimes Act 1961.

Waikato DHB has written to the HDC to state that the Ombudsman has approved and deemed it reasonable for a member of the DHB to implement a "communication plan" which consistent with the criminal offence under section 216B of the Crime's Act. This has been used in complaints C20HDC01111 & C21HDC00605.

Waikato DHB (or Health NZ Waikato) has reiterated this statement to the HRRT (HRRT Matter #013/2021) that the Ombudsman has approved this "communication plan" which is consistent with section 216B of the Crimes Act 1961. In the matter before the HRRT, the same employee has admitted in her Brief of Evidence that she has been intercepting correspondence of more than one member of the public which are sent to the DHB. This has been done without the consent of the sender or the intended recipient, hence consistent with section 216B of the Crimes Act.

I fail to see how the Ombudsman can justify criminal conduct as "reasonable" especially as it also violates patients and the publics rights affirmed under section 21 of the NZ Bill of Rights, IPP 4 and 5 of the Privacy Act 2020, Rule 4 & 5 of the Health Information Privacy Code 2020, and Rights 1-7 of the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996.

The public has a right to know why the Ombudsman is approving unlawful conduct, referring to criminal acts and breaches of our rights as "reasonable" rather than "unlawful" or "wrong". Given the DHB, HDC and Privacy Commissioner have all interpreted the Office of the Ombudsman as approving a "communication plan" implemented by the DHB which is consistent with a a crime defined under section 216B, the public (and I), the Privacy Commissioner, HDC, and HRRT have a right to know why this was the case.

If the Office of the Ombudsman erred in their decision Ref# 519505 (ground 519509), or failed to tests the facts and perform an actual investigation, then it seems to me that the Ombudsman must (as a responsible quasi-judicial body) to go on public record and reverse their decision in Ref# 519505 (ground 519509) and make it explicitly clear that the Office of the Ombudsman did not condone the conduct of the DHB employees who have been intercepting private communications without the consent of the sender or the consent of the intended recipient. The Ombudsman has a responsibility to publicly state this conduct was "unlawful" AND "wrong".

AS Van Wey