Cooper Legal principal partner Sonja Cooper has been representing state care abuse survivors says MSD has been withholding documents for years. Photo: RNZ / Aaron Smale
A lawyer representing state care abuse survivors is appalled that the Ministry of Social Development is still denying them access to parts of their personal files, despite a High Court ruling two weeks ago.
Cooper Legal principal partner Sonja Cooper said Justice Palmer ruled in August that government agencies cannot use the Privacy Act or lower court rules to block survivors from accessing their files.
The Royal Commission into Abuse in Care found that many survivors had difficulty accessing their records. The problems included lengthy delays; or getting incomplete or heavily redacted information.
The Commission's report, released in July, found: "Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations."
Cooper said the Ministry of Social Development (MSD) had been withholding documents from survivors and their lawyers since at least 2016, essentially on the grounds that it had to be the court that directed that those documents be released, and that they could not be released under the Privacy Act.
"We filed in the High Court asking for a declaration essentially to the effect that survivors who request their records under the Privacy Act are entitled to those records except where a court has made an order stating that the survivor could not have those records," she said.
Despite a successful decision from the High Court, MSD was still withholding records, Cooper said.
"We are being told that MSD is still considering the High Court decision and is still refusing to release those records to either us or to survivors," she said.
"It's just deeply disappointing and frustrating to see here we are, after the Royal Commission has reported and after this very well-reasoned, well thought through decision, still facing ongoing obstacles for survivors in obtaining access to their own records.
"While the Crown is entitled to file an appeal, it is not entitled to disregard the High Court's ruling. If MSD is considering an appeal, that in itself is concerning," she said.
Ministry of Social Development spokesperson Nadine Kilmister said MSD was urgently working alongside other crown agencies on the changes required to implement the decision of the court that was received on 19 August.
"Unfortunately this is not straightforward. For example, assessment may be needed to understand if a specific court order relates to a requested court document," she said.
"The judgement impacts multiple crown agencies and we are working with all of the agencies involved to ensure claimants' records are treated consistently."
"We are working through this complex issue as quickly as possible. We will keep Cooper Legal and their clients updated on that process."
