Case Citation: H v Commonwealth Agency [2005] PrivCmrA 5

Subject Heading: Acts and practices engaged in by a person in the performance of the duties of their employment.

Law: Section 8(1)(a) of the Privacy Act 1988 (Cth).

Facts: The complainant was a customer of a Commonwealth government agency. The complainant had made a privacy complaint to that Commonwealth government agency about an officer of the agency improperly browsing her personal information. An investigation was conducted by the agency and as a result of the investigation the officer's employment with the agency was terminated.

The former officer was questioned by a current employee of the agency about the nature of his relationship with the complainant after work hours and offsite. The current employee asked the former officer for the complainant's name and address. The former officer provided the complainant's first name only. The complainant alleged that this questioning was a further breach of her privacy.

The complainant also alleged that the agency had not dealt adequately with her original complaint concerning the improper browsing of her personal information.

Issues: Section 8(1)(a) of the Act provides that the acts done or practices engaged in, or information disclosed to, a person employed by an agency in the performance of their employment duties shall be treated as having been done by, or disclosed to the agency.

The issue for consideration was whether the questions put to the former officer by the current agency employee, at the after work function, was an act or practice performed in the course of the current employee's employment.

The Commissioner also had to decide if the original privacy complaint made by the complainant concerning the improper browsing of her personal information had been dealt with adequately by the agency.

Outcome: Although discussion of work related matters outside the workplace is regulated by the Act in many circumstances, the Commissioner was of the opinion that, in this particular circumstance, the after work socialising was not an act done or a practice engaged in, by the current employee in the performance of their employment duties. The information was sought by the current employee as a matter of curiosity and in their personal capacity as an individual. The questioning did not relate to her work duties or to the functions of the agency.

Consequently, the acts or practices of the current employee who raised questions about the complainant and her relationship with the former officer were not considered acts or practices undertaken in the performance of her employment with the respondent agency. Accordingly, the Commissioner found that this act was not attributable to the agency and declined to investigate this aspect of the complaint under section 41(1)(a) of the Act on the grounds there had been no interference with the complainant's privacy under the Act.

In relation to the additional aspect of the complaint, concerning the improper retrieval of her personal information in the first instance, the Commissioner was of the opinion that based on the information supplied by the complainant the agency had dealt appropriately with the issue. The agency had done so by terminating the officer's employment and offering the complainant a written apology. For this reason, the Commissioner declined to investigate this aspect of the complaint under section 41(2)(a) of the Act on that basis that the agency had dealt adequately with the matter.

OFFICE OF THE PRIVACY COMMISSIONER February 2005