Case Citation: Y v Real Estate Agent [2004] PrivCmrA 11

Subject Heading: Improper disclosure of rental arrears information to a third party.

Law: National Privacy Principle 2 in Schedule 3 of the Privacy Act 1988(Cth)

Facts: The complainant was party to a rental agreement with the respondent, a real estate agent. The respondent contacted a member of the complainant's family who did not reside with the complainant at the rental property, but whose telephone number was included on the complainant's rental file.

On contacting this third party, the respondent asked to speak with the complainant but was advised that the complainant was not there. The respondent then requested that the third party tell the complainant that she owed a number of weeks rent and that if the arrears were not paid immediately, an eviction notice would be sent.

The complainant, on becoming aware of this disclosure of her personal information wrote a letter of complaint to the respondent. The respondent replied with an apology letter which stated that the disclosure would not have occurred if the monies due had been paid on time.

Issues: National Privacy Principle 2 regulates the use and disclosure of personal information by organisations that are subject to the Act. Under National Privacy Principle 2, organisations may only use or disclose personal information for the primary purpose for which it was collected or where an exception applies; for example, where the individual has consented to the use or disclosure (National Privacy Principle 2.1(b)) or where the use or disclosure is related to the primary purpose of collection and within the individual's reasonable expectations (National Privacy Principle 2.1(a))

In this case it did not appear that any of the exceptions under National Privacy Principle 2 applied.

The respondent did not dispute that the complainant's personal information had been inappropriately disclosed to her family member. However, the respondent advised that it had taken steps to remedy the situation including sending a letter of apology to the complainant.

The complainant was not satisfied with the apology provided as it appeared to refer to her arrears as justification for the disclosure of her personal information.

The National Privacy Principles provide protection for individuals' personal information regardless of any existing dispute between the individual and the organisation holding the information. Accordingly, the Commissioner decided that a letter of apology in which the respondent referred to an unrelated dispute to justify its improper disclosure of the complainant's personal information, did not provide an adequate resolution to the complaint.

Outcome:The respondent agreed to provide an additional apology letter to the complainant which did not make reference to the complainant's rental arrears. The complainant advised that she was satisfied with this response.

The Commissioner decided that the letter of apology, in addition to other steps taken by the respondent to prevent such disclosures from occurring again, provided an adequate resolution to the complaint. As such, the Commissioner closed the complaint as adequately dealt with under section 41(2)(a) of the Privacy Act.

OFFICE OF THE PRIVACY COMMISSIONER June 2004