2005 - Complaint Case Note 6

Case Citation:
I v Commonwealth Agency [2005] PrivCmrA 6

Subject Heading:
Application of the Privacy Act to judicial records of federal courts.

Law:
Section 7(1)(b) of the Privacy Act 1988 (Cth).

Facts:
The respondent was a federal court which had allegedly disclosed the complainant's name and address to a third party.

Issues:
Section 7(1)(b) of the Privacy Act provides that the Commissioner only has jurisdiction to investigate complaints about federal courts involving 'an act done or, or practice engaged in, in respect of a matter of an administrative nature'.

The Commissioner had to decide if the alleged disclosure occurred in the course of the court's judicial functions or as part of its administrative functions.

Records which contain information about the judicial function of the court, including records containing litigants and court judgments are considered 'judicial records'. The records of the respondent agency which are of an administrative nature and over which the Commissioner has jurisdiction include personnel records; operations and financial records; freedom of information records; complaint files; and mailing lists used to send judgments and other published material about the court. The Personal Information Digest compiled under Information Privacy Principle 5 and published each year on the Commissioner's website is a useful tool for identifying the administrative records held by agencies.

Outcome:
The alleged disclosure involved information that was recorded in a court order and the alleged disclosure occurred in the course of the judicial functions and activities of the agency therefore it was not an act done, or practice engaged in, in respect of an administrative matter. For this reason the Commissioner decided there was no jurisdiction to investigate the matter and decided under section 41(1)(a) of the Act not to investigate the complaint on the basis that it was not an interference with the privacy of the complainant.

Nonetheless, in response to the complaint the Commissioner was advised that the agency was working towards improving its processes to ensure that its act and practices in the judicial function of the court are improved to minimise similar occurrences.

OFFICE OF THE PRIVACY COMMISSIONER
February 2005

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