Private correspondence ...

"Private correspondence was the pride and joy of 14th century Italians. Exchanging letters with commercial information had been a tried and true technique of Italian business for a century or more. As the generations passed, these business letters increasingly became joined by purely private correspondence ... Among educated Italians letters were seized upon as a marvellous way of maintaining cherished family ties and friendships during periods of separation. Letters not only maintained friendships, they enriched them. Of course the farther the letters had to travel, the longer one had to wait, so distance slowed the epistolary dialogue ... but everyone was aware of the difficulties. The delays only made letters more precious to those who received them, and correspondence was composed with the slowness of transit in mind. The correspondent was kept abreast of intimate household affairs, but they were presented in a particular way. Letters were sometimes warmer than conversation would have been. In writing one was forced to find words to express affection, anxiety (doubled by distance) relief, and joy, words that came less easily to women's lips in daily intercourse owing to convention and modesty."

  • Georges Duby (Ed), A History of Private Life (volume II): Revelations of the Medieval World, 1985/1988, pages 252-256.

  • "...a husband had the right to monitor his wife's acquaintances, visits, travels and correspondence. At the end of the 19th century there was a major controversy over this issue ... . No measures were actually taken to protect the privacy of a woman's correspondence, and most magistrates held against women who attempted to invoke this right. ... One thorny question concerned the secrecy of confidential letters, which were not supposed to be communicated to third parties. This right of secrecy was so powerful that when the recipient of confidential letters died, it was accepted that the sender could ask that the letters be returned. The problem for judges was to determine whether or not a husband could be regarded as a third party."
  • Michelle Perrot (Ed), A History of Private Life (volume IV): From the Fires of Revolution to the Great War, 1987/1990, page 171-173.

    • REPORT BY THE PRIVACY COMMISSIONER TO THE MINISTER OF JUSTICE ON THE POSTAL SERVICES BILL

    CONTENTS

    1. INTRODUCTION 2

    2. PRIVACY AND PRIVATE CORRESPONDENCE 3

    3. INTERCEPTION OF PRIVATE COMMUNICATIONS 7

    4. COMMENT ON CLAUSES 12

    5. SUMMARY OF RECOMMENDATIONS 15

    1 INTRODUCTION

  • 1.1 This bill consolidates and amends the Postal Services Act 1987. My interest in the subject primarily revolves around the fact that postal operators carry correspondence and postal articles which will have within them personal information about identifiable individuals. Letter writing has been an important aspect of private life for literate people for over a millennium. Since the invention of the "Penny Post" the act of writing a letter, sealing it in an envelope, and entrusting it to the Royal mail have been part of everyday life. The invention of telegrams, facsimiles, and electronic mail have not diminished the place of the letter and the sealed envelope as the most secure way of conveying private written correspondence.
  • 1.2 The principal purpose of the bill is to allow increased competition in postal services in New Zealand by removing New Zealand Post's monopoly on carrying letters at low cost. In examining this bill I have been mindful, as I am required under section 14 of the Privacy Act, of the right of government and business to achieve their objectives in an efficient way. The fact that generations of New Zealanders have had their private correspondence carried by a public body does not of itself provide a convincing reason to oppose private operators carrying correspondence in the future.
  • 1.3 Indeed, if one takes a long term historical view, there may be a good case to divorce governments from the carriage of the mail since they may be tempted to inspect the contents for political reasons. In the official history of the British Post Office it is noted that during Oliver Cromwell's Commonwealth there were many blatant examples of interference with private correspondence. Indeed, the Act of 1657, to which the Post Office owes its origin, recited as one of the reasons for making the post subject of Parliamentary enactment that they are "the best means of discovering and preventing many dangerous and wicked designs which have been and are daily contrived against the peace and welfare of this Commonwealth, the intelligence of which cannot well be communicated but by letter of escript". Interestingly, this comment has a present day echo in the debate over encryption of electronic communications. Apparently, things got better after the Glorious Revolution when there was less political interest in intercepting private communication. As The History of the Post Office put it, great improvements were made "when persons were appointed to run the Post Office unconnected with government, to lift the Post Office out of politics". The author further observed that with plain citizens in charge, unversed in the ways of government, there was a concentration on the object of managing and improving the posts of the country and to secure the highest possible revenue. Although the comments were penned in the late 19th Century, and referred to the 17th Century, they may reflect something of the case that the proponents for deregulation would wish to make.
  • 1.4 However, whatever the longer historical view, New Zealand Post's recent reputation has not been tarnished by any significant breach of confidentiality regarding personal correspondence. New entrants in the postal field may not come "ready made" with such a reputation. It is possible that the present situation has arisen not simply by operation of law but also through custom, administrative practice and ethic, established within New Zealand Post and its predecessor the Post Office as a public body. New private postal operators will need to demonstrate an impeccable ethic of respect for the integrity of the mail but it is the task of this bill to ensure that the law backs that up.
  • 1.5 In looking at this bill I have not restricted my focus to new issues which are introduced by deregulation. Some of the comments I will make would apply even if there had been no prospect of introducing private sector competition. I make these comments now because I have had no previous opportunity to do so since the enactment of the Privacy Act 1993.

    • 2 PRIVACY AND PRIVATE CORRESPONDENCE

  • 2.1 In New Zealand society today we place a high value on the sanctity of private correspondence and the integrity of the mail system. This is now a cherished value but it has not always been respected in earlier times. Take for example, the British forerunner of our own Post Office. At times British governments abused the trust they had taken through imposition of a postal monopoly. Joyce in The History of the Post Office published in the late 19th century said:
  • "Various causes have contributed to ... the distrust and hostility with which the Post Office appears to have been regarded towards the middle of last century. As early as 1735 Members of Parliament had begun to complain that their letters bore evident signs of having been opened at the Post Office, alleging that such opening had become frequent and was becoming a matter of common notoriety. ... it transpired that in the Post Office there was a private office, an office independent of the Postmaster-General and under the immediate direction of the Secretary of State, which was expressly maintained for the purpose of opening and inspecting letters. It was pretended, indeed, that these operations were confined to foreign letters, but, in the matter of fact, there was no such restriction. ... it was in June 1742 that these shameful facts became known through the report of a committee of the House of Commons."

    • Joyce's description goes on to say:

    "To ourselves it may seem strange that the monopoly of letters should have survived so terrible a revelation. It must be remembered, however, that in the middle of last century the Post Office owing mainly to the heavy charges it levied, had hardly become a matter of general concern, that public opinion as we now understand it was only beginning to exist, and above all, the conditions under which the Post Office work was done precluded the idea of privacy. These conditions were absolutely inconsistent with the sanctity which now surrounds a letter. Letters were divided into two classes - single or double, and to determine whether a letter was one or the other demanded a close scrutiny, a scrutiny as which could not be exercised except by the strongest light candles could give. ... it had been laid down that a letter however small, was to be charged double if two or more persons joined in writing it. How could it be ascertained that the whole of a letter was in one and the same handwriting except by prying?"

  • 2.2 Joyce disappointingly reports that the infamous practice identified by the Parliamentary committee did not end with exposure. Apparently Treasury continued to remit £4,000 per annum for the inquisitors. Indeed, the "Chief Decypher", Dr Willes, went on to become Bishop of St Davids (he was Dean of Lincoln at the time he was entrusted with intercepting privacy correspondence). Nonetheless, the work of that Parliamentary committee, and the practices it exposed, helped contribute to later reform of the Post Office and the attitude that is today taken towards the privacy of correspondence.
  • 2.3 Article 17 of the International Covenant on Civil and Political Rights which states:

    • Article 17

    1. No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
    2. Everyone has the right to the protection of the law against such interference or attacks.

    Although, protecting the sanctity of mail is fundamental to the protection of privacy, there is no direct equivalent of this right in the New Zealand Bill of Rights Act 1990. However, section 21 contains a relevant, though narrower, right that:

    "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise."

    There are also provisions in a variety of other laws which give some meaning to the right not to be subjected to arbitrary or unlawful interference with correspondence. I will mention a few of the laws of relevance so as to put the comments which follow in this report into a legislative context.

    Postal Services Act 1987

  • 2.4 The Postal Services Act 1987 contains several provisions which ought to help ensure that no-one is subjected to unlawful or arbitrary interference with personal correspondence. Key provisions include:

    • an offence of unlawfully opening a postal article;

    allowing opening of postal articles only in circumstances circumscribed by law and subject to careful procedures;

    offences concerning the wrongful divulgence of the contents of a postal article by an official or by any other person.

    Security Intelligence Service

  • 2.5 The provisions in the Postal Services Act do not give the whole picture in relation to official mail opening as there is other legislation providing for official interception and opening of postal articles - notably by the Security Intelligence Service operating pursuant to a ministerial interception warrant.
  • Opening mail before posting or after delivery
  • 2.6 The scope of article 17 of the International Covenant on Civil and Political Rights is not limited solely to the actions of postal operators. It is lawful in New Zealand in some circumstances for private correspondence to be intercepted and opened before it comes into the hands of New Zealand Post or after it has been delivered. The main circumstance in which this occurs is in relation to persons detained by law in institutions run by the State. An obvious example concerns correspondence to or from prison inmates.
  • 2.7 Some limits may need to be placed on the freedom of correspondence when individuals are incarcerated. However, it is possible that some older legislation may have gone unnecessarily far. I was pleased to be consulted during 1994-1996 in respect of regulations governing residential care facilities for children and young persons. The Department reviewed the regulations, taking into account the New Zealand Bill of Rights Act 1990 and suggestions from my office, and the resultant regulations were, in my view, considerably more respectful of the privacy of correspondence than those they replaced. Nonetheless the regulations still met the essential need to protect both the young people in care and members of the wider community.
  • 2.8 On some suitable occasion the laws which deal with such interferences with private correspondence should be reviewed. It may be desirable to require comparable safeguards in the opening of correspondence in such circumstances to those applying to postal operators, for instance by requiring notice of the fact of opening to be given to addressee and sender. It also may be appropriate to question whether powers to open mail should appear in regulation. The Australian Law Reform Commission considered that such powers should be placed in primary legislation.

    • Privacy Act 1993

  • 2.9 This short review of legal provisions relevant to the privacy of correspondence would not be complete without mentioning the Privacy Act itself. Information privacy principle 4 provides that personal information must not be collected by an agency by "unlawful means" or by means which "intrude to an unreasonable extent upon the personal affairs of the individual concerned". Although I have not had to form an opinion on any such cases, it is clear that the principle would be of relevance if an agency were to collect personal information about an individual by unlawfully opening personal correspondence.
  • 2.10 Less clear-cut, but certainly arguable, would be the case of an agency which was entitled to lawfully open correspondence but did so by means which were unduly intrusive. The principles dealing with storage, use, disclosure and retention, of personal information might all have some relevance to personal information obtained lawfully or unlawfully through the opening and reading of personal correspondence. Use of improperly opened mail would not only be an offence under the Postal Services Act but possibly a breach of information privacy principle 10.
  • 2.11 Section 55(a) of the Privacy Act is also relevant to postal operators. That provision states that nothing in principle 6 or principle 7 applies in respect of personal information in the course of transmission by post. This means that New Zealand Post would not be obliged to give an individual access to, or consider a request for correction in respect of, personal information about the requester contained in postal articles it is carrying. The absurdity and undesirability of holding otherwise would seem self-evident.

    • 3 INTERCEPTION OF PRIVATE COMMUNICATIONS

  • 3.1 I have recently had cause to examine the matter of interception of private communications in some detail the context of interception of telecommunications. My concern in this bill is in relation to a far more traditional issue: the opening of private mail.
  • 3.2 As I observed in the previous part of this report, there are several statutory grounds for intercepting and opening private mail before it is posted, during transit, and after delivery. As far as I am aware, all existing powers of interception are granted to public officials. The novel feature of this law is that private companies may have conferred upon them the power to open and examine private letters.

    • Clauses 5 to 12

  • 3.3 Clauses 5 to 12 relate to the detention and examination of postal articles, and their disposal in any case where they are found to be in contravention, or to have been posted in contravention, of the provisions of the bill or certain other enactments.
  • 3.4 Clause 5 confers on any postal operator the power to detain, open, and examine any postal article that the postal operator has reason to suspect:
  • (a) has been posted in contravention of the Act; or
  • (b) is in contravention, or has been posted in contravention of the Misuse of Drugs Act, Antiquities Act, Trade in Endangered Species Act, Biosecurity Act, or the Customs and Excise Act.
  • 3.5 Unless to do so would be likely to prejudice any investigation into the commission or possible commission of an offence, or the detection or prosecution of an offence, a postal operator is required to give notice of its intention to open a postal article, or that a postal article has been opened, to the addressee (if known), or if not known, to the sender (if known). There are further provisions dealing with the disposal of certain items that have been opened.
  • 3.6 I accept the need for provisions such as are contained in clauses 5 to 12 in relation to the detention, opening and examination of postal articles. However, I am concerned as to whether the safeguards provided are as adequate as they might be in relation to letters given the very serious privacy intrusion caused by the opening and reading of private correspondence. I believe the ending of New Zealand Post's monopoly strengthens the case for enhanced safeguards as the public will expect particular reassurance concerning the opening of mail by a person who is not a public official.
  • "Posted in contravention of the Act"
  • 3.7 I wonder whether the phrase "posted in contravention of the Act", found in clause 5(1)(a), is sufficiently precise. For example, would it entitle a postal operator to open a letter for which insufficient postage had been affixed? I cannot be sure whether other postal operators will take a conservative or expansive view of the power conferred upon them. Although I have no statistical data, my office has been informed by the Legal Services Division of New Zealand Post that section 7 of the Postal Services Act 1987, the present equivalent to clause 5 is "rarely used".
  • 3.8 I recommend that consideration be given to whether a more precise formulation, directed towards limiting the power in clause 5(1)(a) to:

    • Clause 5(2)

  • 3.9 Clause 5(2) sets out the process by which a detained postal article may be opened and examined. Three key safeguards are included:
  • the article may only be opened and examined "at a postal outlet";

    • This provision is based upon section 7(2) of the Postal Services Act 1987 but amended to place any postal operator in the same position as New Zealand Post.

  • 3.10 While it seems appropriate to place other postal operators in the same position as New Zealand Post where there is reason to suspect that a postal article has been posted in contravention of the Postal Services Act, covered by clause 5(1)(a), the position is not quite so clear cut in respect of suspected contravention of other laws, as covered by clause 5(1)(b). Under the present law there will always be two public officials present at the opening of any postal article suspected of being in contravention of the law. Under this law, there will often be no public officials present and, instead, only employees of a private company. I raise this matter for consideration: has Parliament traditionally authorised the Post Office to open mail for suspected contravention of general laws because it is a postal operator or because it is an appropriate Crown representative?
  • 3.11 Depending upon the attitude taken to that issue, one could consider alternatives to the option promoted in this clause. For example, a model could be adopted whereby all openings, other than those for suspected breach of the Postal Services Act, are carried out by public officials from the New Zealand Customs Service, New Zealand Police or a postal inspectorate. An alternative would be for an employee of the postal operator to be required to be specially authorised for the purpose by the Crown to exercise clause 5(1)(b) powers. The Crown would, of course, make checks as to the person's suitability to exercise this power.
  • 3.12 The Australian Law Reform Commission examined the question of interception of the mail in 1983. It concluded that there was no compelling reason to empower Australia Post officials to open mail for general law enforcement purposes. It observed that general law enforcement should be left to the Australian Federal Police and Australia Post officers should not be de facto policemen.
  • Clause 5(3)
  • 3.13 An important safeguard is contained in subclause (3) of clause 5. This continues the existing law that where a postal article is intended to be opened, or has been opened, the postal operator must give notice to that effect to the addressee if known, or if not known, to the sender of the postal article if known. I recommend consideration be given to obliging the postal operator to give notice to both the sender and the recipient. Giving notice to the addressee is valuable as it explains why the wrapping material appears to have been breached. It will assure the addressee that some other third party has interfered with his or her mail. However, if the postal article which has been opened is private correspondence it may be argued that the sender's privacy has been invaded at least as much as the recipient.
  • 3.14 I also suggest that the notice be required to give the general reason for the opening and examination. The equivalent provision in Australia requires such a notice to "explain briefly (by reference to a provision of this Division or otherwise) the purpose for which the article was opened. Accordingly, I recommend that consideration be given to amending subclause 5(3) to give notice to both the addressee, if known, and the sender, if known of both the fact of opening and the reason for doing so.
  • Clause 5(4)
  • 3.15 Notice given under subclause 5(3) is an extremely valuable privacy safeguard. In my report in relation to the Harassment and Criminal Associations Bill, I noted that notification to the individual whose private telecommunications had been intercepted was a strong safeguard present in the interception regimes of Canada, Germany and the USA. However, this safeguard may be dispensed in this bill under subclause (4) where the postal operator believes, on reasonable grounds, that the giving of the notice, or the giving of the notice at the particular time, would be likely to prejudice an investigation into the commission or possible commission of an offence against the Postal Services Act or any other enactment, or the detection or prosecution of any such offence.
  • 3.16 I acknowledge that a provision along the lines of subclause (4) will be necessary where there is an ongoing investigation. Similar provision exists in the Privacy Act to protect the maintenance of the law in such circumstances. However, I am concerned that the subsection may permit permanent dispensing with notice in circumstances where there need only be postponement in giving notice. It should be possible to amend subclause (4) so as to oblige a postal operator to give notice at a later time when the giving of the notice at the particular time would be likely to prejudice an investigation.
  • 3.17 Consideration may have to be given to whether such an amendment need deal differently with notices in relation to the opening of the postal articles for suspected contravention of the Postal Services Act and the opening of articles in relation to the other types of offences set out in paragraph 5(1)(b). There should be no difficulty in obliging the postal operator to give delayed notice in respect of a suspected breach of the Postal Services Act. It may be a little more problematic where the suspected offending is in relation to one of the other enactments and where the investigation is not being carried out by the postal operator but by a separate law enforcement agency. To give effect to my recommendation it may be necessary to place the obligation to give delayed notification upon the law enforcement agency in such circumstances.
  • 3.18 Accordingly, I recommend that clause 5(4) be amended to require notification to be given to the addressee and sender at the next suitable opportunity in circumstances where immediate notification at the particular time would be likely to prejudice an investigation into the commission or possible commission of an offence.

    • Public reporting

  • 3.19 My next concern about the powers to open and inspect postal articles is the lack of public reporting in respect of the exercise of the power. The comments I made in relation to the annual reporting requirements placed on the Commissioner of Police in respect of interception of private communications may be apt here. In my report on the Harassment and Criminal Associations Bill I stated:
  • "The requirement on the Commissioner of Police to report certain details in relation to the interception of private communications is, in my view, a safeguard of fundamental importance. Intercepting communications for law enforcement purposes necessarily must be kept secret at the time but the process generally ought to be as transparent as possible because the Police are accountable to Parliament for the exercise of the power. Reporting is a requirement which tries to tip the balance away from totally secret surveillance into an open and democratically accountable use of limited covert surveillance. In evidence to the select committee studying the Intelligence and Security Agencies Bill I endorsed a quotation appearing in ASIO's Annual Report, that 'when every detail is given, the mind rests satisfied'. I believe that comment is pertinent here."
  • 3.20 New Zealand Post has never been required to report specifically on exercise of the power to intercept private communications. In my view, reporting to Parliament is an important safeguard in respect of the exercise for extraordinary powers to intercept private communications and this ought to be put right.
  • 3.21 Other postal operators do not report directly to Parliament. They will be empowered to open and inspect the contents of private correspondence and yet this bill requires no reporting on the exercise of that power to Parliament or any public official. In my view, the novelty of empowering a private body to open private communications is such that we must take considerable care to ensure adequate safeguards. I believe that there ought to be an obligation to record the circumstances of each opening and to periodically report publicly as to the numbers of times that the power is utilised and the general reasons for doing so. This may provide some reassurance to the public that the power is not being used excessively. It will also give some basis to judge whether the new postal operators are exercising the power consistently with the approach of New Zealand Post. This is relevant to ensuring that, in terms of article 17 of the International Covenant on Civil and Political Rights, the exercise of the powers are neither "unlawful" nor "arbitrary".
  • 3.22 A mechanism does exist in the bill whereby reporting obligations could imposed. Clause 34 obliges New Zealand Post to provide certain information to the Chief Executive of the department responsible for administering the Postal Services Act and regulations can be prescribed under clause 38 requiring certain information to be supplied by designated postal operators. In my view, those two provisions could be suitably amended to require the reporting of relevant details to the department administering the Act. The bill could be further amended to oblige that department to report annually to Parliament as to the exercise of the power by New Zealand Post and each designated postal operator.

    • 4 COMMENT ON CLAUSES

    Detention and examination of postal articles - clause 5

  • 4.1 Clause 5 is entitled "detention of postal articles". In fact, it deals not with simply "detention" of postal articles but also the "opening and examination" of those articles. None of the later clauses deal with the opening of postal articles. Accordingly, I suggest that the clause be given a new marginal note to read "detention and opening of postal articles".

    • General obligations relating to postal articles - clause 13

  • 4.2 Clause 13 obliges anyone who comes into the possession of a postal article which has not been delivered, to deliver that article to:
  • Failure to do so is an offence. This provision continues existing law and accords with the general expectation that if a letter or postal article is misdelivered, that the recipient must put it back into a public letterbox for redelivery or return to the sender.
  • 4.3 The recipient of the misdelivered article has the option of delivering it to the addressee (for example, if the correct addressee is a neighbour). However, the offence provision fails to take account of the possibility that the recipient of the misdirected article might choose, in an attempt to be helpful, to physically return the article to the sender. No doubt this is less common than delivering the article directly to the addressee, since sender and addressee are likely to be some distance apart, but the circumstance is not impossible to imagine. In my view, the section should be amended to accord with reasonable practice by a member of the public in this circumstance by adding a new paragraph (1)© referring to "the sender". Naturally this will be only feasible if the identity of the sender is apparent from the outside of the postal article since it would be an offence for a member of the public to open it. If there would be any doubt on the subject, the new paragraph could instead read something like "the sender (if ascertainable from the exterior of the postal article)".

    • Addresses of rural delivery boxholders - clause 25

  • 4.4 Clause 25 provides that every postal operator must, where practicable make available publicly the addresses of every rural delivery boxholder to whom that postal operator provides postal collection and delivery services. Any such boxholder may direct the postal operator not to make the boxholder's address available publicly. The rational for the clause is, I understand, to recognise that people in remote locations could be isolated and to ensure that their addresses could be found.
  • 4.5 Although there may well be merit in rural people choosing to have their boxholder details made available publicly, I have concern as to the way the law is drafted. In particular, this bill provides that a rural boxholder's details will be made available unless that person takes some action to have those details withheld. A position which would be more respectful of these people's privacy would be to retain the information between postal operator and customer as a private matter unless the individual chooses to have the details released. In other words, the directory of boxholders would become something that rural people could choose to opt into rather than something that they would appear in unless they exercise their statutory right to opt out.
  • 4.6 To meet these concerns, the statutory provision could be altered or it could be omitted altogether. If the provision were to be deleted in its entirety this would leave the matter to the normal operation of law. The two laws of relevance would be the Privacy Act 1993 and the law of contract. Under both types of law it would be necessary for the postal operator to explain how customer details would be dealt with. As with private boxes that New Zealand Post operates in the city, it is quite likely that postal operators which are respectful of their customer's privacy would leave it to the customer to choose whether they wished to go into a directory or not.
  • 4.7 However, it may be desirable to leave a provision in the Act dealing with the subject for other reasons notwithstanding that the general law would probably provide a satisfactory outcome. Rural people may be concerned that in the absence of a provision such as clause 25, that a postal operator might choose not to produce a public list of rural delivery boxholders at all.
  • 4.8 If clause 25 is retained I suggest that the presumption should be that details not be published unless the boxholder opts to be included in a directory - the position that applies with private boxes.

    • Clause 38 -Regulations

  • 4.9 Clause 38(e)(i) allows for regulations to prescribe rules and procedures to be followed by postal operators relating to the exchange of information relating to the addresses of customers. It appears that the regulation making powers are intended only to provide a formal backup in the event that agreements cannot be negotiated between the various postal operators. I simply observe in this context that there will be information privacy issues in respect of the exchanges of lists of "customers" between postal operators. Indeed, one might even say that every single New Zealander is a "customer" of the New Zealand Post given its present monopoly (and on-going monopoly on deliveries of international mail). I trust that privacy issues will be taken into account when postal operators are negotiating agreements, and later if regulations become necessary. For example, individuals should be made aware of what is to happen to that personal information if they notify a change of address to New Zealand Post. Also, addresses exchanged for interconnection should be used for that purpose and not as a resource to mine for direct marketing. I expect that notification of changes of address could quite properly be used for updating or cleansing mailing lists but such lists should not, in my view, be sold as mailing lists themselves unless the individuals concerned have consented to this.

    • 5 SUMMARY OF RECOMMENDATIONS

  • 5.1 The marginal note to clause 5 should refer to "opening" of postal articles.
  • 5.2 Postal operators should be obliged under clause 5 to keep a record of the exercise of powers of detention, opening and inspection.
  • 5.3 Consideration should be given to amending clause 5(1)(a) to more precisely state what the phrase "posted in contravention of the Act" means, with the intention that the focus be on the breaches of the Act having a more serious character and in respect of which opening and inspection is the only appropriate way of proceeding.
  • 5.4 I recommend that clause 5(3) be amended to:
  • (a) require notice to be given to both the addressee, if known, and the sender, if known; and
  • (b) require the notice to refer not simply to the fact of opening but the reason for doing so.
  • 5.5 I recommend that consideration be given to whether it is appropriate for employees of private companies to be involved in the opening and examination of mail pursuant to clause 5(1)(b) for general law enforcement purposes and that consideration be given to the alternatives whereby public officials carry out that task.
  • 5.6 Consideration should be given to whether the Act, or regulations to be made under the Act, can seek to ensure that persons authorised pursuant to clause 5(2) are of good character and receive appropriate training for the very serious task of opening private mail.
  • 5.7 I recommend that clause 5(4) require notification to be given to the addressee and sender at the next suitable opportunity in circumstances where immediate notification would be likely to prejudice an investigation.
  • 5.8 I recommend that clauses 34 and 38 be amended to require information concerning the exercise of powers of opening and inspecting postal articles to be reported directly to Parliament or through the Ministry of Commerce.
  • 5.9 Clause 13 should provide a defence where a person personally delivers back to the sender an article received in error.
  • 5.10 I recommend that clause 25 be amended to give rural boxholders the opportunity to choose to opt into having their personal details published rather than obliging them to opt out of having those details published if they object.
  • 5.11 In considering any procedures for the exchange of information relating to the addresses of customers, including the making of any regulations under clause 38(e), careful consideration should be given to the privacy implications.
  • 5.12 Although not the subject of this bill, consideration should be given at an appropriate time, to reviewing laws which provide for the opening of mail before or after it has entered the postal system so as to provide adequate safeguards to ensure privacy of correspondence.

    • B H Slane

    Privacy Commissioner

    24 June 1997