Dear Privacy Commissioner,

The following quotations are from Case note 232848 [2012] NZ PrivCmr 3; each followed by related Official Information Act requests ---

1. ""Reviewers, when conducting reviews, are acting in the nature of a tribunal and in a judicial way."

Are reviewers "conducting reviews" from the time a review application is received by Fairway Resolution Limited, a reviewer is allocated to that particular case, and the review hearing decision is issued, or, are reviewers "conducting reviews" only when the hearing is taking place (as the above quoted wording implies)? If the former applies, what is the situation when a reviewer is replaced or recuses him or herself before the hearing takes place?

2. "Outside the appeal process it is each independent reviewer, rather than DRSL (now called Fairway Resolution Limited), who is the custodian of the records of each review hearing. Whether to release a record of a review hearing outside of the appeal process is a decision for the reviewer who conducted the hearing."

What legislation, regulation, policy, guideline or rule provides for reviewers being "custodian(s) of the records of each review hearing", and, please provide me with copies of same. Also, what legislation, regulation, policy, guideline or rule exists insofar as the decision making process about whether or not a reviewer should release a record of a review hearing outside of the appeal process, and, please provide with copies of same.

In the event that a reviewer is replaced or recuses him or herself before the hearing takes place, who would be the interim custodian, at what point does the custodianship end exactly, and, who is the custodian of the records of each review hearing thereafter?

Reviewers are "independent" of the ACC and Fairway Resolution Limited - both of which are "crown entities" - and as such they are not subject to the Public Records Act. Therefore the personal and health information, evidence, and other review hearing related records collected by reviewers "when conducting reviews" do not enjoy the safeguards and protections that would otherwise apply if the ACC and/or Fairway Resolution Limited were the custodians of the records of each review hearing. What mechanisms are in place to ensure the protection and integrity of review hearing related records collected by reviewers, and, what recourse is there in the law available to ACC claimants who have cause for complaint in relation to such matters?

Fairway Resolution Limited's Reviewer Training Manual states that "... the reviewer is not bound by the Privacy Act and Health Information Privacy Code, and does not need to comply with the restrictions the Act and the Code puts on the collection, use, and disclosure of personal information". What, though, is the situation with the other areas of the Privacy Act and the Code that deal with the equally important issues of storage, correction, etc. of information?

Yours faithfully,

Lee M.