2008 - Complaint Case Note 12

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Case Citation:

L v Commonwealth Agency [2008] PrivCmrA 12

Subject Heading:

Failure to take reasonable steps to ensure personal information was accurate and up to date before the information was used and improperly disclosing personal information to a third party

Law:

Information Privacy Principle 8 and Information Privacy Principle 11 in Part III Division 2 of the Privacy Act 1988 (Cth)

Facts:

The complainant’s former spouse submitted an application form to a government agency in which they included the complainant’s address. The agency then inadvertently applied the former spouse’s address to the complainant’s records, resulting in mail intended for the complainant being sent instead to the complainant’s former spouse. Legal action subsequently ensued between the complainant and their former spouse in relation to the information that was disclosed.

The complainant raised the issue with the agency, seeking compensation for the emotional distress they had suffered and expenses incurred, including legal costs, as a result of the agency’s actions.

In response the agency acknowledged that it had incorrectly recorded the complainant’s address. The agency also acknowledged that its actions contributed to the legal costs subsequently incurred by the complainant, and offered the complainant part payment of the legal costs claimed.

The complainant wrote to the Privacy Commissioner dissatisfied with the response from the agency.

Issues:

Information Privacy Principle 8 obliges an agency not to use personal information contained in a record without first taking steps (if any) that are reasonable in the circumstances to ensure that the information is accurate, up to date and complete.

Information Privacy Principle 11 requires an agency not to disclose personal information, other than to the individual concerned, unless one or more of certain exceptions apply.

Outcome:

The Commissioner investigated the matter under section 40(1) of the Privacy Act.

The agency advised that it had investigated the matter and found that when processing an application form from the complainant’s former spouse, the agency inadvertently used that information to register an incorrect address for the complainant. On this basis, the agency suggested that the matter could be resolved by conciliation.

The Commissioner began conciliating the matter under section 27(1)(a) of the Privacy Act.

The agency acknowledged that it had interfered with the complainant’s privacy, took action to remedy the matter, and apologised for any distress the matter may have caused the complainant and their family. It also renewed its offer to pay part of the legal expenses the complainant claimed to have incurred as a result of the interference with privacy.

Conciliation concluded with the complainant accepting a confidential settlement between the parties. The settlement included the amount previously offered by the agency towards the legal expenses claimed by the complainant, and a further amount for injuries to the complainant’s feelings.

The Commissioner then closed the complaint under section 41(2)(a) of the Privacy Act on the grounds that the agency had adequately dealt with the complaint.

OFFICE OF THE PRIVACY COMMISSIONER

June 2008