Case Citation: 

O v Tenancy Database Company [2006] PrivCmrA 14

Subject Heading:

Reasonable steps to ensure that information is accurate, complete and up to date.

Law:

National Privacy Principle 3 of the Privacy Act 1988 (Cth).

Facts:

The complainant was listed on the tenancy database on 15 November 2001. The listing category was ''refer to lister'', which meant that an enquiring real estate agent had to contact the listing agent for more information. In July 2004, the complainant contacted the tenancy database company and complained that the listing was inaccurate and requested that it be removed from the database.  

In late July 2004, the listing was amended to show the listing category as ''absconded''.  The complainant considered this amendment to be incorrect and complained to the Privacy Commissioner.  Ten days after the initial amendment was made, the listing was amended again to show the listing category as ''rental arrears during tenancy''. 

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.

Outcome:

It is the Commissioner''s view that the use of generic listing categories, such as ''tenancy history only'' or ''refer to l12ister'', where more specific categories are available means that the record cannot be considered ''complete''. The Commissioner considers that this practice increases the risk that the record will be incorrectly interpreted.[1]  At the time of the listing in this case, the tenancy database company used a range of specific reporting categories. As such, the Commissioner formed the view that the use of the generic category ''refer to lister'' was incomplete and in breach of National Privacy Principle 3. 

The Commissioner also found that it was not clear that sufficient evidence was available to support the ''absconded'' category at the time the listing was first amended. The changes made to the listing category at this time were as a result of an investigation by the tenancy database company, which had been initiated as a result of the complainant''s letter. The complainant provided information that the tenancy had been terminated, and the complainant had vacated in accordance with that termination.  The tenancy database company claimed that the listing as ''absconded'' was due to the listing agent''s misinterpretation of the meaning of absconded. 

The Commissioner''s view was that the tenancy database company had not taken reasonable steps to ensure that the information regarding the listing category ''absconded'' was accurate. The Commissioner considered that it would be reasonable to expect that a tenancy database company would collect evidence, as part of its investigation, to support the new listing category, and ensure that the record was accurate. This did not occur.  

As a result of further investigation by the tenancy database company, the listing was ultimately changed to ''rental arrears during tenancy'' in early August 2004, which meant that the listing category ''absconded'' only appeared for 10 days.  

In the course of the Commissioner''s investigation, the tenancy database company provided a copy of a rental payment ledger it obtained during its investigation, which demonstrated that it had taken reasonable steps to ensure the use of the listing category ''rental arrears during tenancy'' was accurate, complete and up to date. 

The Commissioner considered the complainant''s request that the listing be removed entirely.  However, as the amended listing was considered accurate, complete and up-to-date, there was no obligation on the tenancy database company to remove the listing.   

Further, as there was no record of a search on the complainant''s name while the listing had been incorrect, the Commissioner did not consider that there had been any damage flowing from the listing being initially under a different category. Given this, and the changes to the listing to show an accurate listing category, 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

[1]Privacy Commissioner Determination 2 of 2004 discussed the use of generic listing categories and the associated failure for those records to be accurate, complete, and up to date see http://www.privacy.gov.au/materials/types/determinations/view/6025