Case Citation: 

J  v Australian Government Agency [2007] PrivCmrA 12

Subject Heading:

Gathering of information by a government agency

Law:

Information Privacy Principles 1 and 3 in Part III Division 2 of the Privacy Act 1988 (Cth)

Facts:

The complainant was acting as an authorised representative of an individual involved in a matter relating to a government agency.  The government agency sought to collect a debt owed by the individual (the payer). 

The complainant obtained a number of documents from the government agency under the Freedom of Information Act 1982 (Cth), and discovered that the government agency had obtained personal information about the complainant as part of the agency's investigations into the individual they had been representing.

The complainant disputed any link between themselves and the individual which would have allowed this information to be gathered by the government agency.

Issues:

Information Privacy Principle 1 states that:

1. Personal information shall not be collected by a collector for inclusion in a record or in a generally available publication unless:
   1. the information is collected for a purpose that is a lawful purpose directly related to a function or activity of the collector; and
   2. the collection of the information is necessary for or directly related to that purpose.
2. Personal information shall not be collected by a collector by unlawful or unfair means.

Information Privacy Principle 3 provides that in gathering information, the collector must make sure that the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Outcome:

The Privacy Commissioner investigated the complaint under section 40(1) of the Privacy Act 1988 (Cth).

Whilst the Commissioner accepted the complainant's assertion that they were not personally liable for the individual's debt or financially involved with the individual in any way, the complainant had identified themselves as the individual's representative and had assisted the individual for a number of years.  The agency conceded that it had misinterpreted the relationship between the complainant and the individual and that it had since apologised for this misinterpretation. 

However, in the Commissioner's view this did not mean that is was inappropriate for the agency to pursue the enquiries that it did.  Irrespective of any relationship between payers and their representatives, the agency had a responsibility to appropriately administer the law and facilitate the payment of the debt.  The Commissioner accepted that where payers are represented, it may in some circumstances be necessary to collect personal information in relation to their representative, using where necessary the statutory powers.  The Commissioner recognised that the agency needed to make enquiries about the background of the payer's representative (the complainant) in order to rule out the possibility that the complainant might be assisting the payer in avoiding liability. 

In this particular case, the Commissioner decided that the information gathered was not an unreasonable intrusion into the complainant's privacy as the agency's concern was based on a reasonable (although incorrect) assumption, the complainant's personal information was collected from a publicly available source of information (a land ownership registry) and the enquiries ceased immediately when it became clear that the complainant was not financially connected to the payer. Therefore no breach of the Privacy Act had occurred.  The Commissioner then closed the matter under section 41(1)(a) of the Privacy Act.

OFFICE OF THE PRIVACY COMMISSIONER

June 2007