Case Citation: 

C v Australian Government Agency [2007]PrivCmrA 3

Subject Heading:

Disclosure of personal information upon the publication of a hearing transcript.

Law:

Information Privacy Principle 11(1)(d) and section 41(2)(a) of the Privacy Act 1988 (Cth).

Facts:

The complainant attended a hearing convened by a review agency.  In the course of the hearing the complainant tendered a letter from their doctor stating that they were suffering from a mental illness.  The review agency later published its decision and transcript of the hearing on its website.  Much of the complainant's personal information had been omitted from the online publication, including certain information in the letter from their doctor, but the published transcript revealed the fact that the complainant was suffering from a mental illness. 

The complainant requested that the agency remove the publication, and in particular remove the reference to the medical condition. The review agency declined the request.  The complainant then submitted a formal complaint to the Privacy Commissioner.  

Issues:

Information Privacy Principle 11 prohibits agencies from disclosing personal information to third parties unless certain circumstances exist such as where an individual has consented to the disclosure or where the disclosure is required or authorised under law.

The review agency was of the view that it was authorised to publish the decision in its entirety under law and so could rely on Information Privacy Principle 11(1)(d)[1]. 

The review agency also had its own guidelines which provided that personal details of a person's medical condition should be excluded although this was subject to the discretion of the decision-maker in the case where the relevant details are integral to the issues under consideration. 

Outcome:

The Commissioner conducted preliminary enquiries into this matter under section 42 of the Privacy Act.  In response to those enquiries the review agency noted that publication of the diagnosis in the online version of the transcript appeared to be inconsistent with its own guidelines.  The review agency also acknowledged that the complainant's decision to pursue the matter indicated that they felt genuinely aggrieved about the matter.

During the course of the Commissioner's preliminary enquiries the review agency agreed to remove the diagnosis from the online version of the published hearing transcript. 

Section 41(2)(a) of the Privacy Act gives the Commissioner a discretion not to investigate, or not to investigate further, an act or practice about which a complaint has been made if satisfied that the respondent has dealt adequately with the matters that gave rise to the complaint.

In this case, the complainant was satisfied with the outcome and the Commissioner declined to investigate the complaint under section 41(2)(a) of the Privacy Act on the basis that the agency had adequately dealt with the complaint. 

OFFICE OF THE PRIVACY COMMISSIONER

April 2007

[1] Information Privacy Principle 11.1(d) allows an agency to disclose personal information if the law requires or authorises that disclosure.  A law authorises a use for another purpose if legislation governing the using agency clearly and specifically gives it discretion to use the personal information for that purpose. The agency must be able to point to a specific relevant discretion in the legislation governing it.