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Case Citation:

J v Commonwealth Agency [2009] PrivCmrA 13

Subject Heading:

Disclosure of personal information by a Commonwealth agency

Law:

Information Privacy Principle 11 in Part III Division 2 of the Privacy Act 1988 (Cth)

Facts:

The complainant was an employee of a Commonwealth agency.  The agency had undertaken an investigation into the conduct of several of its employees, including the complainant.

The complainant then submitted a workers' compensation claim. Consequently, the agency arranged for a doctor to assess the complainant to determine their fitness for duties, and any barriers to their return to work. Prior to the assessment, the agency provided the doctor with personal information about the complainant, including information related to the investigation.

The complainant disputed the agency's need to disclose information about the investigation.

Issues:

IPP 11 prohibits agencies from disclosing personal information to anyone other than the individual concerned, unless an exception applies.

IPP 11.1(a) states that an agency may disclose personal information if the individual concerned is reasonably likely to have been aware that information of that kind is usually passed on to that person, body or agency.

Outcome:

The Privacy Commissioner investigated the matter under section 40(1) of the Privacy Act.

In assessing the complaint, the Commissioner first considered whether the complainant was ‘reasonably likely to be aware’ that the information would be disclosed to the doctor, then examined whether information of that type would ‘usually’ be disclosed to a doctor in similar situations.

The Commissioner was satisfied that the complainant was ‘reasonably likely to have been aware’ that the information would be passed to the doctor for two reasons. Firstly, the agency had notified the complainant that the purpose of the doctor's appointment was to assess their ability to return to the workplace. Secondly, the agency notified the complainant prior to the appointment that it would be disclosing their personal information to the doctor. The agency subsequently provided the complainant with a full copy of the personal information it supplied to the doctor.

The complainant denied being aware of the exact information provided to the doctor. While the evidence before the Commissioner did not support that assertion, the Commissioner explained that IPP 11.1(a) requires that the individual is ‘reasonably likely’ to have been aware, rather than ‘actually’ was aware, that information of that kind is usually disclosed.

The Commissioner also accepted that it is usual practice in workers compensation matters for an employer to provide the assessing doctor with all relevant information about the employee. As the subject matter of the agency's investigation may have presented a barrier to the complainant returning to work, the Commissioner considered this information to be relevant to the assessment of the complainant's condition.

Therefore, the Commissioner was of the view that the disclosure of the complainant's personal information in this instance was permissible under IPP 11.1(a).

The Commissioner closed the investigation under section 41(1)(a) of the Privacy Act, on the grounds that the agency had not interfered with the complainant's privacy.

OFFICE OF THE PRIVACY COMMISSIONER

November 2009