2003 - Complaints Case Notes 1

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Case Citation: C v Commonwealth Agency [2003] PrivCmrA 1

Subject Heading: Disclosure of sensitive personal information by a Commonwealth agency, where the complainant was employed, to another Commonwealth agency where the complainant had applied for a position.

Law: Information Privacy Principle 11.1

Facts

The complainant, an employee with a Commonwealth agency, attended an interview for a position with another Commonwealth agency and provided the name of a referee, who was the complainant's supervisor, to the interview panel. The advertised position principally involved answering telephone enquiries from members of the public. The complainant was unsuccessful at interview and alleged that the supervisor improperly disclosed that the complainant:

• suffered from epilepsy and depression;
• was on sick leave, mentioning the length of time that was taken off; and
• did not cope well under stress.

The complainant submitted that failure to be selected for the position was due to the referee improperly disclosing this information to the interview panel.

Issues

Information Privacy Principle 11.1 provides that a Commonwealth agency may disclose personal information only if at least one of five exceptions applies. Of the five exceptions, only two were relevant to the complaint:

• IPP 11.1(a) provides that a disclosure is permitted when the individual concerned is reasonably likely to be aware that information of that kind is usually passed to the relevant person, body or agency; and
• IPP 11.1(b) provides that personal information may be disclosed with consent (express or implied) of the individual.

The Commissioner took the view that the disclosure of the personal information about epilepsy and sick leave was not permitted by IPP 11.1(a) or (b).

The basis for this view was as follows:

• the individual was not reasonably likely to be aware that the referee would disclose medical information in the course of providing a reference ? so that IPP 11.1(a) did not apply; and
• while the complainant impliedly consented to the disclosure of a range of personal information relating to skills, work experience and personal attributes relevant to the advertised position, information about medical conditions and past sick leave taken could not be construed as within the scope of implied consent ? so that IPP 11.1(b) did not apply.

The Commissioner found that the allegation about a disclosure of the length of time that the complainant had taken off in sick leave, was not substantiated.

In relation to the disclosure about the complainant being susceptible to stress, the Commissioner took the view that it did not contravene IPP 11. The basis for the view was that susceptibility to stress is a normal human characteristic properly relevant to employment. Therefore, the communication of this information by a person expressly nominated as a referee was not a breach of privacy, particularly as the ability to cope with stress is likely to be a materially relevant factor in interviewing candidates for a position in a call centre environment. The Commissioner took the view that the complainant was reasonably likely to be aware that judgements of this kind could be conveyed to the interview panel so that this disclosure was permitted by IPP 11.1(a). In addition, the Commissioner accepted the proposition that, when the complainant asked the supervisor to act as referee, the complainant had impliedly consented to the disclosure of personal information relating to skills, work experience and personal attributes to the interview panel so that this disclosure was also permitted by IPP 11.1(b).

Outcome

As a result of the investigation, the agency apologised to the complainant and paid compensation of $7,000.

OFFICE OF THE PRIVACY COMMISSIONER
JANUARY 2003