Your rights
The Human Rights Review Tribunal (HRRT) is an independent judicial organisation that is separate from our Office. It’s a possible option for you if you feel we haven’t solved your issue. You can’t go to the HRRT before us.
The HRRT can look at your case once we’ve finished our work. They look at each case on its own merits and don’t take any earlier legal opinions, including ours, into account.
You have six months from when OPC closes your complaint to a claim in the HRRT.
When you can and can’t make a claim
You can make a claim to the HRRT if we’ve:
- Investigated and closed your complaint.
- Looked at the possibility of settlement without investigating (and been unable to secure settlement).
Before you go to the HRRT you need to get some things in order. You need to check that we have:
- Notified the agency of your complaint.
- Investigated or notified the parties that we will attempt to settle your complaint.
- Closed your complaint.
- Given you a Section 98 notice and a certificate.
Reasons that you can’t take your case to the HRRT
You cannot file proceedings (go to the HRRT) if we have declined to investigate your complaint under section 73(1)(a) of the Privacy Act 2020. We will tell you if we decline for that reason.
You generally cannot file proceedings if you have formally settled your complaint or withdrawn it before it’s been investigated.
There is a six-month timeframe
You have six months to file a claim, and the six-month time limit runs from when your OPC investigator notifies you about the closure of your complaint. This is called a ‘section 98 notice’ in the HRRT’s Statement of Claim form.
Please be aware that even if your certificate has been provided later, you must file your complaint within six months of the date of the section 98 notice. If you are unsure, contact us and we will do our best to help.
We can confirm the date you were given notice so you can work out when your six months will be up.
If I haven’t commenced proceedings within six months, have I lost my chance?
Not necessarily. Section 98(8) of the Privacy Act allows the Chairperson of the HRRT to extend the time for starting proceedings if they’re satisfied that “exceptional circumstances prevented proceedings from being commenced”.
If you have a good reason that explains your delay in filing your claim, you can explain this to the HRRT. Things you may wish to consider include any personal circumstances that affected your ability to file a claim or prevented you from filing your claim promptly.
If this is you, you should contact the HRRT directly for advice on how to proceed. You may also wish to seek legal advice.
Section 98 notices
What does my ‘section 98 notice’ look like?
When your complaint was closed you should have received an email or an attachment from OPC labelled ‘section 98 notice’. Your section 98 notice will tell you why we closed your complaint and the section we made our decision under.
If your complaint is about both access to your information and another privacy principle, we will give you notices under two different sections.
You do not need to attach the actual closing letter or email from OPC, which will sometimes go into detail about the reasons for closing, just the page or email that says it is the section 98 notice.
My complaint was closed but I didn’t receive a section 98 notice
Search your junk and spam folders for any emails from an ‘@privacy.org.nz’ email address. If you still don’t have anything, please contact us at investigations@privacy.org.nz and we will do our best to help.
You declined to investigate my complaint and didn’t give me a section 98 notice
When we receive a complaint, we must decide about how to proceed under section 73(1). If we decline to investigate your complaint under section 73(1)(a) you will not receive a section 98 notice.
This is because OPC must investigate a complaint, or formally explore the possibility of settlement, before you can file proceedings in the HRRT.
We will tell you about our decision and the reasons for it (i.e. why we have declined to investigate your complaint).
If our initial decision is to explore the possibility of settlement without first commencing an investigation (refer section 73(1)(d) and section 77), but we are unable to secure settlement and later decide not to investigate we will provide you with a section 98 notice. That is because, in that situation, you can bring proceedings in the HRRT (refer section 98(1)(a)). Sometimes we will make preliminary enquiries with the agency you are complaining about to get more information to help us decide what action we will take under section 73.
If, after making preliminary enquiries, we decide not to investigate your complaint under section 73(1)(a), you will not receive a section 98 notice.
Please note that making preliminary enquiries prior to deciding under section 73 and exploring the possibility of settlement without investigating under section 77, are different processes.
Read more information about when you can and can’t go to the HRRT.
What other information do I need to go to the HRRT?
The HRRT website has the best information about what you’ve need. Read about making a claim.
