2006 - Complaint Case Note 10

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Case Citation:

K v Tenancy Database Company [2006] PrivCmrA 10

Subject Heading:

Reasonable steps to ensure that information in a record is up-to-date.

Law:

National Privacy Principle 3 in Schedule 3 of the Privacy Act 1988 (Cth)

Facts:

The complainant had rented a residential property through real estate agent “A” with the tenancy ending in 1996. In late 1996 and early 1997 the Residential Tenancies Tribunal issued orders against the complainant relating to the rental agreement of the property managed by real estate agent “A”. In the period after the 1996 order, and before the 1997 order, the landlord had employed the services of real estate agent “B” to manage the property.

Real estate agent “B” listed the tenant on a tenancy database in 2002. When the complainant became aware of the listing, they were advised that it was in connection with the property rented by the complainant in 1996.

The complainant wrote to the Privacy Commissioner and lodged a complaint stating that at no time did they have dealings with real estate agent “B”.

Issues:

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

National Privacy Principle 3 states that an organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date.

While the information was collected prior to the commencement of the National Privacy Principles on 21 December 2001, section 16C(2) of the Privacy Act states that National Privacy Principle 3 (so far as it relates to personal information being used or disclosed) applies regardless of the information being collected before the commencement of the National Privacy Principles.

The first issue to consider was whether the tenancy database company had taken reasonable steps to ensure that the information recorded was up-to-date.

The tenancy database company initially claimed that the information was up‑to-date because the Tribunal order remained enforceable.

In the current case, the Commissioner considered that the information recorded on a database related to conduct that had occurred a significant amount of time previously, and that due to the passage of time, the information might no longer accurately reflect the risk of the particular tenant. Given the delay by real estate agent “B” in listing the tenant, and the fact that the tenancy database company had solely relied on the period of enforceability of the orders, the Commissioner formed the view that the tenancy database company had not taken reasonable steps to ensure that the information was up-to-date, and consequently, the tenancy database company had breached National Privacy Principle 3.

As real estate agent “B” did not manage the property when the complainant was a tenant, there was a question as to whether the landlord’s new agent could list the complainant on the database. However, the Commissioner did not come to a final view on this issue as it was not central to the complaint.  

Outcome:

The tenancy database company removed the default listing from the complainant’s record on the basis that, if the listing had been recorded contemporaneously with the Tribunal orders, then the listing would have been removed during the tenancy database company’s data cleansing process.

The Commissioner decided under section 41(2)(a) of the Privacy Act to cease investigation of the complaint on the grounds that the tenancy database company had adequately dealt with the matter.

OFFICE OF THE PRIVACY COMMISSIONER
June 2006