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Complaint Determination No 2 of 2004
Federal Privacy Commissioner April 2004
- Small business provisions
- Current steps taken to make sure personal information is accurate, complete and up-to-date
- Agreement with members
- Random checking of listings
- Listing process and requirements
- Notice in accordance with npp 1.5 as reasonable step under npp 3
- Findings in relation to TICA's current data quality processes
- TICA's use of generic listing categories
- Findings in relation to tica's use of generic listing categories
- Tica's use of the term 'tenancy history only' for multiple purposes
- Findings in relation to the use of the 'tenancy history only' listing
- Dispute resolution processes and npp 3
- Findings in relation to dispute resolution and npp 3
- Npps 6.5 and 6.6
- Summary of findings on npp 3 and npp 6.5 and 6.6
Complaint Determination No. 2 2004
1. Made under the Privacy Act 1988 (Cth) (the Privacy Act) section 52.
Parties to the Complaint
2. The Tenants' Union of Queensland Inc, Tenants' Union of NSW Co-op Ltd and complainants C, D, E, F and G.
3. TICA Default Tenancy Control Pty Ltd.
4. This determination relates to a complaint lodged by the Tenants' Union of Queensland Inc (TU QLD) in February 2003 under section 36 of the Privacy Act.
5. The respondent to the complaint is TICA Default Tenancy Control Pty Ltd (TICA). As set out below (see ) TICA's business activities involve the collection, use and disclosure of personal information. It is complained that certain acts and/or practices of TICA may be an interference with the privacy of individuals.
6. The complaint is a representative complaint, lodged pursuant to section 38 of the Privacy Act. TU QLD has identified the class of members to the representative complaint as 'tenants or former tenants whose listing on the TICA database is either inaccurate, incomplete or not up to date'.
7. I also received complaints made by the Tenants' Union of NSW Co-op Ltd (TU NSW), and complainants C, D, E, F and G. The individuals the subject of those complaints fell within the class of members identified by TU QLD and, accordingly, those complaints were dealt with as a part of the representative complaint brought by TU QLD.1
8. I decided to investigate the relevant acts and practices of TICA pursuant to section 40 of the Privacy Act, being satisfied that there was an act or practice which may have been an interference with the privacy of an individual and that the complaints received were validly made under section 36 of the Privacy Act.
9. I am also satisfied that the requirements for the making of a representative complaint, set out in section 38 of the Privacy Act, have been met.
Background, allegations and remedies sought
10. TICA is one of a number of organisations that operates what is known as a tenancy database. Its Tenancy History Database holds personal information about many thousands of Australians relating to alleged defaults on tenancy agreements, including failures to pay rent or damage to property. It also holds personal information about applicants for tenancies in what is known as the Enquiries Database. TICA collects personal information about tenants and applicants for tenancies from property managers that are 'members' of TICA and makes the personal information it holds on its database available to its members for a fee.
11. The complainants allege that the notices that TICA provides tenants and others about whom it collects personal information under National Privacy Principle (NPP) 1.5 (set out below at ) are not sufficient to make individuals aware that they have been listed on the database and thus allow them to challenge the accuracy, completeness and currency of the listing. They also allege that the information held in the TICA database is not 'accurate, complete or up-to-date' to the extent required by NPP 3 (set out below at )
12. The complainants argue that there are a number of related problems that contribute to the allegation that the personal information on the database is not sufficiently accurate, complete or up-to-date.
13. The issues that the complainants raise, in the original complaint or in submissions and oral comments to me at the hearing I conducted on 3 March 2004, are that TICA:
- allows listings that have not been verified by an independent third party such as a tenancy tribunal - in the complainants' view this means that listings can be made vexatiously and inaccurately;
- uses non-specific listing categories such as 'Tenancy History Only' that bring into question the accuracy of the database;
- allows landlords to list incidents that are not a breach of residential tenancy agreements, thereby undermining tenancy legislation;
- does not advise individuals that a listing has been made;
- uses a dispute resolution system that is inadequate and does not resolve accuracy disputes effectively; and
- holds entries on its database that are incomplete or which are not accurate, for example because all fields are not complete or because there are entries that duplicate, in most but not all respects, another entry.
14. NPPs 6.5 (set out below at ) and 6.6 (set out below at ) are also relevant to this complaint in that they require organisations to take reasonable steps to correct personal information that is not accurate, complete and up-to-date or to allow an individual who does not agree that personal information about them is accurate, complete and up-to-date to attach a statement to this effect to the record. As the complaint I am considering is about the accuracy of personal information, I consider I also need to decide if TICA's acts and practices comply with these NPPs.2
15. Section 38(2) of the Privacy Act requires amongst other things that a complainant identify the remedy sought. The remedy sought by the complainants is a declaration by the Privacy Commissioner that TICA:
- only list a person if the person has breached an order of a state tenancy tribunal, or similar body;
- advise a person in writing if they have been listed on the TICA database;
- require that its members keep records of these orders in order to support the listing and will provide these to TICA within seven days in the case of a dispute;
- immediately remove listings which are incomplete such as 'refer to agent' or 'tenancy history only';
- remove listings where an agent is no longer in business or no longer a member of TICA and therefore the listing cannot be substantiated; and
- amend and publish, on its website and in all material provided to tenants (such as documentation provided under the Privacy Act) categories under which individuals may be listed on the database and the criteria associated with the categories.
16. The NPPs in Schedule 3 of the Privacy Act outline standards for handling personal information that legally bind organisations, as defined by section 6C(1) of the Privacy Act.
17. Section 13A of the Privacy Act specifies that an act or practice of an organisation is an interference with the privacy of an individual if the act or practice breaches an NPP in relation to personal information that relates to that individual.3
18. The issue in this complaint is whether TICA takes reasonable steps to make sure that the personal information it handles is accurate, complete and up-to-date as required by NPP 3. NPP 3 sets out organisations obligations' to maintain data quality.
19. NPP 3 states that:
20. The complainants also alleged that TICA does not meet its obligations under NPP 1.5 to take reasonable steps to provide individuals with specified information.
21. NPP 1.3 states that:
At or before the time (or, if that is not practicable, as soon as practicable after) an organisation collects personal information about an individual from the individual, the organisation must take reasonable steps to ensure that the individual is aware of:
- the identity of the organisation and how to contact it; and
- the fact that he or she is able to gain access to the information; and
- the purposes for which the information is collected; and
- the organisations (or the types of organisations) to which the organisation usually discloses information of that kind; and
- any law that requires the particular information to be collected; and
- the main consequences (if any) for the individual if all or part of the information is not provided.
22. NPP 1.5 states that:
23. NPPs 6.5 and 6.6 are also relevant to the question of the accuracy, completeness and currency of personal information. These principles are part of the range of measures set out in NPP 6 dealing with aspects of the right to access personal information. They complement organisations' data quality obligations under NPP 3 by requiring them, where the individual independently establishes that personal information is not accurate, complete and up-to-date, to take reasonable steps to correct that information and by allowing individuals to have their view noted where there is disagreement.
24. NPP 6.5 states that:
25. NPP 6.6 states that:
26. Section 6D(1) of the Privacy Act defines a small business as one with an annual turnover of '$3,000,000 or less'. Section 6D(3) to 6D(9) of the Privacy Act provide for a small business to be classed as 'a small business operator' and therefore not subject to the Privacy Act except in specified circumstances, including where an organisation trades in personal information.
27. The Privacy Act also provides that small businesses which are subject to the Privacy Act would not be subject to the provisions of the NPPs until 21 December 2002. Consequently, when investigating this complaint I have been restricted to examining evidence relating to the acts and practices of TICA which occurred after 21 December 2002 except where the Privacy Act provides otherwise.
28. In this regard with respect to small businesses:
- section 16D(2) of the Privacy Act provides that NPP 3, as far as it relates to collection of personal information, only applies to personal information collected after 21 December 2002;
- section 16D(3) of the Privacy Act provides that NPP 3, as far as it relates to use and disclosure, applies to personal information regardless of when it was collected; and
- Section 16D(4) of the Privacy Act provides that NPPs 2 and 6 apply to personal information collected after 21 December 2002.
29. Section 52 of the Privacy Act provides that after I have investigated a complaint I may make a determination:
- dismissing the complaint; or
- finding the complaint substantiated and making a declaration that:
the respondent has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct; and/or
the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant; and/orthe complainant is entitled to compensation for any loss or damage - including injury to the complainant's feelings or humiliation suffered by the complainant.
30. It is also within my powers under s 27 of the Privacy Act to make recommendations which will promote compliance with the NPPs.
31. Section 40(1A) of the Privacy Act provides that I must not investigate a complaint where the complainant has not first complained to the respondent, unless I consider that it was not appropriate for the complainant to have done so. In the present case, I am aware that TU QLD has had ongoing contact with TICA in relation to a number of privacy issues arising out of its activities and that this contact may be considered to be by way of 'complaint'. To the extent that the present complaint falls beyond those 'complaints' made to the respondent, which I note have not resulted in the resolution of these matters, I am satisfied that the complex nature of the issues raised and their significance for the rights of the people concerned makes it inappropriate for them to be the subject of direct complaint to the respondent.
32. My Office's investigation of this complaint involved the following:
- formally advising the parties that I was opening an investigation into the complaint under section 40(1) of the Privacy Act and inviting the parties to respond;
- gathering evidence and considering information provided by TU QLD, TU NSW, the individual complainants and TICA in submissions or in response to matters raised by my staff or the complainants;
- providing the respondent and the complainants with opportunities to comment on an initial preliminary view on the complaint in September 2003;
- visiting TICA's premises to discuss the issues raised in the complaint, to observe its database in practice and gather additional information about the operation of the database;
- providing the parties with the current Office position on the complaint in February 2004 following changes in some aspects of the views expressed by the Office since September 2003 and extending an invitation to make oral and/or written submissions;
- holding a hearing on 3 March 2004 affording the parties the opportunity to appear before me - TU QLD and TU NSW accepted the invitation to appear at the hearing;
- considering written and oral submissions and gathering information to clarify claims made by the parties;
- providing the primary representative complainant (TU QLD) and TICA with the opportunity to see information and submissions provided by the other party;
- checking TICA listings relating to 50 individuals to assess if the personal information in the listings was accurate, complete and up-to-date;
- pursuant to section 43(5) of the Privacy Act and the principles of procedural fairness, providing the parties with a revised preliminary view in March 2004 (the March preliminary view) and a final opportunity to comment before I finalised the determination;
- holding a further hearing on 8 April 2004 affording the parties the opportunity to appear before me - TICA accepted the invitation appeared at the hearing; and
- providing TICA and TU QLD with copies of the submissions, excluding some material that involved personal information of third parties, made by the other party in response to my March preliminary view.
33. Before setting out my findings and reasons in relation to this complaint I will make some general comments about the context in which this complaint is made.
34. Housing is essential for all people and is one of the basic human rights set out in the Universal Declaration of Human Rights.4 The operation of tenancy databases is controversial because of their perceived impact on the ability of individuals listed on the databases to obtain housing. On the other hand tenancy databases, such as TICA, can be seen as a legitimate risk minimisation tool for property managers.
35. A number of the NPPs relevant to this complaint require an assessment of 'reasonableness' (for example, the 'reasonable steps' required of an organisation under NPP 1.3). I take the view that in making an assessment of 'reasonableness', it is appropriate to take into account the purposes for which personal information is collected and the consequences for the individuals concerned. In this case I am satisfied that tenancy databases, such as the one operated by TICA, do have an impact on an individual's ability to obtain housing; my understanding is that this is part of the intention when establishing such databases.
36. However, this is only one factor I have taken into account. I have also considered the overall intention of the Privacy Act including that business needs to be able to operate efficiently and effectively and that the NPPs are general high level principles and are not prescriptive in how they apply.
37. I have set out below issues that this complaint raises together with information and evidence and discussion about the application of the law that I consider relevant to the question of whether TICA complies with its obligations under NPPs 3, 6.5 and 6.6.
38. It is relevant to note that this complaint is against TICA, not its members. Accordingly, I will not consider how the NPPs apply to the acts and practices of its members. That would be the subject of separate investigation should such a complaint be made against a member I acknowledge TICA's request in its submission in response to my March preliminary view that it be advised about practices of its members that may be breaches of the Privacy Act so that it can assist to address these practices.
Small business provisions
39. I find that TICA is an 'organisation' as defined by section 6C(1) of the Privacy Act, and is accordingly bound by the NPPs.
40. I find that TICA does not fall within the exemption to the Privacy Act which applies to 'small business operators'. TICA is a 'small business' in terms of the Privacy Act, in that its annual turnover is '$3,000,000 or less'.5 However, as TICA trades in personal information, it does not fall within the definition of 'small business operator' by virtue of section 6D(4)(c) of the Privacy Act.6
Current steps taken to make sure personal information is accurate, complete and up-to-date
41. TICA argues that the information it holds is accurate, complete and up-to-date. TICA has put forward the following points to support this view.
- The 'essential information is true and correct. Essential information is that a tenancy existed, the agent was the agent or had the agency transferred to it. The contact number for the agent is recorded'.
- Whether or not a person is currently renting the property, the information on the database reflects the conduct of the tenant.
- It is TICA's policy that its members must provide TICA with information that is 'true and correct' and 'all members guarantee the accuracy of the information at all times'.
- It carries out 50 random checks on lodgements every week where members are required to give a copy of the tenancy agreement, the tenancy application, the tenancy history ledger, any notices issued to the tenant, any tribunal orders and any accounts for cleaning or damages.
- Its collection process uses specified fields and pick lists, rather than free text fields, to ensure consistency and accuracy of listings and it publishes information about the meaning of listings.
- It refers disputes about listings to members.
42. While I acknowledge that TICA does take some steps to ensure that its information is accurate, complete, and up-to-date, it is my view, for the reasons that follow, that the steps taken are not, in all of the circumstances, sufficiently adequate to be considered 'reasonable'.
43. As noted above, I consider the potential significance of the listing for an individual - namely, difficulty in obtaining access to housing - as being relevant. In my view, this impacts upon what steps are 'reasonable' in ensuring that information is accurate, complete and up-to-date.
Agreement with members
44. The Privacy Act places responsibility on organisations with respect to data quality that cannot be passed onto others by contractual arrangements (although others may assist in meeting the obligations). I consider that the fact that TICA's agreement with members places obligations on the members to make 'true and correct' listings is a positive step in meeting the obligations in NPP 3.
45. However, I note that the agreement only requires that the listing be 'true and correct' and it does not specify what is meant by 'true and correct'. The obligations in NPP 3 go beyond requiring organisations to take reasonable steps to make sure personal information is correct. They must also take reasonable steps to make sure personal information is complete and up-to-date. In my view, a listing might be 'true and correct' but be incomplete, for example because it notes that a debt of X amount was owed but does not note that it has since been paid, or be out-of-date because it relates to very old events.
46. I also note that the agreement with members does not currently specify what will happen if members fail to provide listings that are 'true and correct'. Although the NPPs do not require a specific course of action, it would not be reasonable in my view for TICA to take no action in such circumstances; the listings would need to made accurate, complete and up-to-date or be removed. It is also my view that it would be unreasonable not to take some steps to prevent incorrect listings in the future. TICA notes in its submission of April 2004 (responding to the March 2004 preliminary view) that its web site states that members will be suspended for making vexatious listings and that it would amend listing found to be false or misleading. I acknowledge these measures and consider they are helpful. I would also expect similar action where a member has a pattern of inaccurate, incomplete or out of date listings for reasons other than a vexatious intent.
Random checking of listings
47. In my view, the 50 random checks that TICA states it undertakes weekly to test the accuracy, completeness and currency of member listings would be a positive step in meeting the obligations in NPP 3. TICA advises that its process is to seek copies of the documents mentioned above from its member and to check these against the listing. However, TICA has advised that it does not keep records of this process and that it shreds the documents it receives from its members once the check is complete.
48. The Office asked TICA to provide it with the first 50 alphabetical listings from the Tenancy History Database and attempted to check the accuracy of these listings. To confirm the accuracy of each listing staff of the Office undertook the following:
- examined the face of each listing to ensure that the record was complete and that there were no obvious inaccuracies; and
- telephoned the listing member using the telephone number provided in the record to:
- ask if the individual was/is a tenant who had a tenancy relationship with the member; and
- ask if the tenant's name and suburb in which they rented was correct; and
- ask if the member had a copy of the lease that applied to the tenancy; and
- ask if the member, on TICA's behalf, had obtained the individual's consent for TICA to collect the individual's personal information and how this consent was obtained; and
- ask the member if the remark in the field titled 'comment' (that is the listing category) was correct; and
- ask the member what evidence it had to support the listing, including what specific evidence was held to substantiate that money was owed or that a tribunal/court order existed and for a copy of that evidence to be provided to my Office.
49. In relation to the records that the Office checked it was found that:
- Some records did not contain adequate identifying information, for example no driver's licence number was listed.
- There were obvious inaccuracies on the face of some records. For example, some records contained the listing 'Tenancy
History Only' but also listed an amount of rent owed and a date the rent debt was cleared.
- The listing category was incorrect in some instances.
- The record showed that one real estate franchisee had listed a debt when in fact the listing was made by another franchisee.
- The amount of rent owing was incorrect in some instances.
- Rent had been 'cleared' but the record had not been updated to reflect this in some instances.
- The listing member had no knowledge of the tenant in some instances.
- The member who initially listed the tenant had sold the real estate agency and the current owner had no records relating to the tenancy in some instances.
50. In its April 2004 submission TICA accepted some of the error types listed above but argued that others were based on the Office's misunderstanding of its processes. In particular, TICA noted that it did in fact have minimum listing requirements in place and had done so since 1998-99 when over 100,000 entries were removed from the database. I discuss this issue further below (see ). TICA also queried the Office's conclusion that some listing categories were incorrect. This conclusion was based upon corrections made by listing members when the Office contacted them to discuss their listing and I am satisfied that it is correct.
51. TICA did acknowledge that it is aware of cases where the listing agent may have been incorrect, for example where a staff member moved to a new agency and made a listing with the previous agent's logon and password; it has taken steps to prevent this occurring in the future including changing members' logon and password more frequently.
52. TICA also accepted that there may be instances where a listing in relation to an amount owing was incorrect because of an 'oversight' by a member, or where the listing member had no knowledge of the tenant or had ceased to trade. It considered that these matters would be dealt with under TICA's policy of deleting listings that cannot be validated or would be subject to correction under NPP 6.5. However, these mechanisms rely on TICA or an individual being aware that a listing is not accurate, complete or up-to-date and in my view this is inadequate.
53. In the context of ensuring that personal information is accurate, complete and up-to-date in the present circumstances, I am of the view that the following elements in any system of quality control are important:
- implementation of a system for routine random checking of records;
- deletion or amendment of records that are found to be inaccurate;
- advice of deletion or amendment to the individual concerned and to any other members that have accessed the record since it was listed;
- provision of feedback to the member concerned; and
- detailed records of the checking process including the member's name, date of the check, results of the check and action taken.
54. The March preliminary view indicated that TICA's system of checking does not meet these criteria. TICA states in its April 2004 submission that it takes all the steps other than the record keeping element. TICA also advised that it would consider establishing a system to keep records of its random check of members; the system would probably involve making file notes rather than keeping copies of documents. However, on the basis of the evidence before me, including the investigation conducted by the Office detailed above, I am satisfied that TICA has not taken sufficient steps to comply with NPP 3.
Listing process and requirements
55. TICA's method of collection is to receive listings from its members, either by the member entering data directly into the database or by the member providing information to TICA for entry. TICA advises that its system is designed to promote accuracy of the listings in that it uses a standard format for data entry it provides a number of standard fields and it does not allow the member to make free text entries.
56. The March preliminary view was based on the understanding that TICA did not require its members to provide a minimum set of information before accepting a listing. TICA advised in its April 2004 submission that it does require, in addition to name, at least one other form or identification (date of birth, driver's licence number or passport number) before accepting a listing. It provided a copy of a listing screen, dated 25 March 2004, that stated this requirement. I also note that the 50 records the Office examined all contained at least two identifiers.
57. The March 2004 preliminary view was that, in the context of ensuring that personal information is accurate, complete and up-to-date in the present situation, the following elements are important for a method of collection:
- mandatory completion of fields that are significant in terms of ensuring the personal information is accurate, complete and up-to-date; and
- requiring a minimum set of identifying information, for example name, date of birth, and address or driver's licence number.
58. As noted above, TICA advises that it does require one piece of identifying information in addition to name. It argued strongly against any requirement to include tenants' addresses on its database on the grounds of relevance to its members and privacy risks for the individuals concerned. It also argued that the information currently submitted by members was limited to what tenants provided or had available; it noted that there were many people who would have neither a driver's licence nor a passport. The complainants in their submission to me in response to the March 2004 preliminary view agreed, with qualifications, with the proposal that a listing should only be accepted with a minimum set of personal information. It considered that the minimum set should be name, date of birth and an official identification number of some sort. It did not seek to include address as an identifier.
59. I am aware of a wide range of anecdotal evidence to the effect that a listing with TICA can have a negative impact on an individual's ability to gain housing and that a property manager may decide not to proceed with a tenancy application if it finds a listing it thinks relates to an applicant. While I accept that not all or even most property managers will rely only on the fact that a person has a listing with TICAÂ¸ I consider that it would not be reasonable for TICA to accept listings that are ambiguous as to the person to whom they relate.
60. In my view, name and one other identifying factor will not always be sufficient to establish identity to this level. My experience is that, in general, database entries commonly contain a range of errors introduced, for example because of operator error, the use by individuals (for whatever reason) of different names or variations on their names, or the existence of a number of people with the same or similar names. Increasing the number of identity-related data items to be collected may improve the strength of evidence of identity. In the case of tenancy databases, I take the view that the minimum requirement is three pieces of such information, including name and date of birth.
61. TICA needs to be mindful that there are many government-issued (Commonwealth, State and Territory), and other, numbers that could be used as the third data element in determining evidence of an individual's identity. Use of Commonwealth government identifier-numbers (such as passport numbers) by private sector organisations, however, can occur only in compliance with NPP 7; this will require further consideration by TICA. TICA also needs to be mindful that the collection of additional data elements such as date of birth or government-issued identifiers for the primary purpose of establishing evidence of identity would mean, in accordance with NPP 2, that these particular data items may only be used or disclosed for the purpose of establishing evidence of identity (or in accordance with the exceptions under NPP 2).
Notice in accordance with NPP 1.5 as reasonable step under NPP 3
62. In my view, in the context of this complaint, proper notification of the collection of personal information (required by NPP 1.5) can play an important role in ensuring accuracy as it allows an individual to challenge a listing that they believe is (and may be) inaccurate.
63. The complainants argue that TICA's current forms of notice are not sufficient to make people aware that they have been listed on the database and as a consequence TICA is failing to allow individuals the opportunity to check and challenge the accuracy, completeness and currency of listings about them.
64. TICA advises that it informs individuals that it has collected their personal information from a third party (the property manager) via the 'Privacy Acknowledgement that tenants are required to sign when they apply for a property'. TICA believes that this acknowledgment form makes 'the database membership and activities transparent and fully advises individuals what will occur with their personal information'. It also advised in its April 2004 submission that the Privacy Acknowledgement was not the only source of information available to tenants about TICA and its operations or about the fact that they may or will be listed in certain circumstances. Other advice includes arrears letter from members and various other TICA policy statements that it has prepared for use by members or which describe its operations. On this basis, TICA believes that it satisfies the requirements of NPP 1.5.
65. I note here that TICA collects personal information at two stages and holds that information in two separate databases as follows:
- information may be collected, about potential tenants and other people who will live in the dwelling but not be included on the tenancy agreement as tenants (known as approved occupants), when they apply for a tenancy and regardless of whether the tenancy proceeds - this set of personal information is held on the Enquires Database;
- information may be collected when a member considers there has been a problem with the tenancy, or the tenancy ends, and it makes a listing about a tenant (but not about approved occupants) - this set of information is held on the Tenancy History Database
66. The application of the Privacy Act to the Enquiries Database and to the steps TICA takes to meet its obligations under NPP 1.5 is considered in relation to my Determination No. 4 of 2004. That determination finds that in some respects the steps that TICA is currently taking are not reasonable for the purposes of NPP 1.5 given the circumstances of the complaint.
67. In relation to this complaint I consider that the fact that TICA takes some steps to advise individuals, in accordance with its obligations under NPP 1.5, is a positive step towards the reasonable steps it needs to take under NPP 3.
68. However, I consider it is relevant here to note that:
- TICA has only been obliged to comply with NPP 1.5 since 21 December 2002, and I consider it is probable that there are many individuals who are currently listed in the database who do not know they are listed; and
- it would appear that individuals are not necessarily informed that an adverse listing has been made with TICA and may only become aware that they have been listed, and therefore have an opportunity to challenge the accuracy, completeness and currency of the listing, if they are denied a tenancy and are told that this is on the basis of an adverse TICA listing.
69. In regard to this last point, TICA in its April 2004 submission noted that tenants would be advised in arrears letters of the possibility of listing if payments are not brought up to date. However, I also understand from supporting material provided by TICA that a property manager may or may not proceed with a listing in these circumstances. I also understand that listings may occur without an arrears letter - for example because the listing was for a non- arrears matter. Although an arrears letter may make some individuals aware of a listing or potential listing, I am not satisfied that the practices of property managers are consistent. I also reiterate that arrangements that TICA might make to get others to help meet its obligations does not relieve TICA itself of these obligations, in this instance in regards to NPPs 1 and 3.
Findings in relation to TICA's current data quality processes
70. I note that TICA in its April 2004 submission argues that is up to it, not the Privacy Commissioner, to decide what steps are reasonable in the circumstances. I agree with this view but only up to a point. The Privacy Act clearly puts an obligation on an organisation to make such judgements. The Act also, however, provides that I can make those judgements should they be the subject of a complaint and that I am then in a position in a determination such as this to reach a different view on what is reasonable.
71. On balance, for the reasons I have set out above, I find that although TICA is taking some steps to make sure the personal information it collects, uses and discloses is accurate, complete and up-to-date these steps fall short of the 'reasonable steps' required by NPP 3. Consequently, I find that TICA is in breach of NPP 3.
TICA's use of generic listing categories
72. The information before me indicates that the listing categories used during May 2003 were:
- Arrears of rent
- Broke tenancy agreement
- Dishonoured Cheques
- Tribunal orders (Against the Tenant in favour of the Agent or Lessor)
- Court orders (Against the Tenant in favour of the Agent or Lessor)
- Failed to comply with Residential Tenancy Act
- Rental bond claims
- Failing to provide adequate notice
- Sublet without consent
- Entered into Payment Arrangement
- Damage to property
- Taking possession without consent
- Past tenant history no default recorded
- Satisfactory payment history
- Tenancy History
- Current tenant
- Recommended tenant
- Breaches of body corporate bylaws
- Poor periodic inspections
- Unauthorised pets
- Schemes of arrangement
- Noise and Nuisance
73. TICA stated that members are only allowed to use existing categories and there is no free text field that allows members 'to type any information into listing categories'. However, members are able to list amounts in relation to certain fields. When a member makes an enquiry about an individual the information returned is listings against any category, any associated monetary details, details about the listing agent and the date of listing.
74. In my view, given that members may only look at the category name when checking for listings about an individual, the names of the categories should allow the tenant and listing member to understand the meaning attached to the listing, and they should convey accurate information about the tenant's history to other persons using the TICA database. The March preliminary view stated that the current categories do not meet this test, in part because a number of broad, 'catch-all' categories are in use.
75. TICA responded in its April 2004 submission that is was considering changing its business model to being a history only database; that is that the database would only contain individual details including the property managers with whom they had rented. While I note this proposal, it does not alter the situation in relation to the complaints currently before me. However I note that in general the Privacy Act would not prevent this form of database provided its operation complied with the NPPs.
76. Without well-defined listing criteria, tenants and users of the database are not able to determine the meaning attached to listings. If there are multiple definitions for listing categories the precise nature of the comment being made cannot be plain on the face of all categories. My view is that this would render the database incomplete and inaccurate.
77. The categories noted in the March preliminary view as being currently too broad included 'Breaking a tenancy agreement' and 'Failed to comply with Residential Tenancy Act'. It was noted that the use of these terms may result in information being recorded that is incomplete in terms of NPP 3, for example because it is possible that a term of the tenancy agreement or legislation is broken by mutual agreement between the parties. These generic terms are applicable when a tenant is in rental arrears, has absconded or failed to provide adequate notice, has sublet without consent and taken possession without consent. Neither of the generic terms 'Breaking a tenancy agreement' and 'Failed to comply with Residential Tenancy Act' reveals the precise nature of the comments being made and accordingly, appear to be incomplete.
78. TICA's April 2004 submission advises that it ascribes a particular meaning to the term 'broke tenancy agreement' namely the situation where the tenant advises the property manager of their decision to vacate the premises while an agreement is in place; the term is therefore not a catchall for other listings such as 'absconded' or 'sublet without consent'. I accept this clarification. However, I continue to hold the view that the category 'Failed to comply with Residential Tenancy Act' is a broad, catch all category and results in information being recorded which is incomplete.
79. TICA does provide definitions of the categories on its website and in information to members. While TICA has published its listing criteria on its website, the listings are preceded by the sentence 'The following list provides a selection of the most common breaches for which tenants can be listed on the database. It should be noted that members may list other breaches which may not be listed below.' From the material before me, I have concluded that the listing categories are used intermittently and not adequately understood or followed by members. I find this is likely to result in an incomplete and inaccurate database.
80. It would also appear that the listing definitions on the TICA website are not identical to the definitions TICA provided to my Office. For example, the website defines 'Arrears of rent' as 'a tenant can be reported to TICA from the time of arrears'. The advice provided to my Office by TICA defines 'Arrears of rent' to be 'when a tenant is more than four days in arrears and not in advance as required under the Residential Tenancy Agreement and the Residential Tenancy Act'. This suggests that the listing criteria are not well defined. TICA has acknowledged that there have been ambiguities in definitions. Its April 2004 submission argues that the examples referred to above refer to different scenarios and are therefore technically accurate. Nevertheless, it remains my view that it is critical that the categories are consistently described in all the circumstances in which they are made available.
81. I find that TICA's use of a 'pick list' method of reporting tenancy history, which relies on one category that is broadly defined and on descriptions that are brief, not consistently defined and are not mutually exclusive, means that in this regard it is not taking reasonable steps to make sure that the personal information it holds is accurate, complete and up-to-date.
82. The complainants argue that, given the nature of the database and its impact upon an individual's ability to gain housing, listings should be supported by a high standard of proof and refer to the objective decision of a third party. They also argue that as a general rule listings should only be allowed when a tenant breaches an order of a relevant tenancy tribunal. They claim that without this the accuracy of the listing cannot be determined and that without introducing any external process, such as verification through tribunal orders, incorrect and subjective listings will continue.
83. The Privacy Act does not, in my view, give me the power to determine what listing categories should be used by TICA. The Privacy Act requires that all listings must be accurate, complete and up-to-date and I may therefore be able to form a view that certain listing categories are not acceptable. However, it does not follow that I can or should prescribe what categories must be used.
84. Having said this, in my view listings which are restricted to categories defined by legislation, or listings which relate to tribunal and court orders, will be clearly defined and are appropriate for use in a database such as that maintained by TICA. While I acknowledge that tenancy regulation is a state responsibility and the legislation differs in each state, which may limit the ability to define national criteria for listing categories, where appropriate such an approach is to be encouraged in the interests of accuracy and completeness.
85. I consider that it would be reasonable for the definition of each mutually exclusive listing to be clearly communicated to database members and individuals, including the type of evidence the agent will require before making a listing. I note that the use of mutually exclusive categories does not prevent an agent from making multiple listings of multiple breaches of the tenancy agreement. However, each breach of the agreement should be clearly defined by one category. I suggest that TICA provide tenants and members with information advising exactly when one listing would be used to the exclusion of another.
86. In my view it would also be beneficial for TICA to ask members to provide tenants with a copy of the listing categories at the time the tenancy agreement is signed and the criterion that will lead to listing in the database. The criteria should make clear exactly the circumstances under which a person would be listed. Individuals would then understand that if they committed a particular act that they would be listed on the TICA database. TICA advises, in its April 2004 submission, which its members provide individuals with the definitions of the categories. I encourage TICA and its members to continue this practice.
Findings in relation to TICA's use of generic listing categories
87. I find that TICA's use of a 'pick list' method of reporting tenancy history, which relies on one category that is broadly defined and categories which are not consistently defined and are not mutually exclusive, means that in this regard it is not taking reasonable steps to make sure that the personal information it holds is accurate, complete and up-to-date. I therefore find that TICA is in breach of NPP 3.
TICA's use of the term 'Tenancy History Only' for multiple purposes
88. My findings in relation to TICA's listing categories apply also to the use of the listing 'Tenancy History Only'. However, this listing category raises particular issues that warrant separate consideration.
89. TICA states that 'Tenancy History Only' is used when 'a member may not need to report a default but cannot justify recording a satisfactory tenancy history or recommended tenant'. TICA also states that this listing is used when 'a tenant rented a property and the member wishes not to record 'Past history no default recorded' or 'Satisfactory payment history'. In addition the TICA website states that defaults which have been listed for either 3 or 5 years are amended to 'Tenancy History Only'. Its April 2004 submission also states that it is possible for a rental arrears listing to be made in conjunction with a Tenancy History Only listing.
90. TICA's view is that this listing is accurate, complete and up-to-date: 'a Tenancy history listing provides no more information than would be provided by an honestly and accurately completed tenancy application form. It acts as a verifier of an application form. Tenancy history only is what it says, a tenancy history'.
91. From my investigation I understand that this listing may indicate that a tenant has had a default in the past. However, it may also be chosen by agents to be used for tenants who did not have any defaults or where the tenant did not conduct the tenancy in a satisfactory manner (although the tenant did not have a default recorded against their name). As the 'Tenancy History Only' listing may indicate that a default once existed, it appears inconsistent to allow this listing to be applied to tenants who have had no default recorded.
92. The history of use of the 'Tenancy History Only' is such that it will continue to carry with it a negative connotation and therefore the category appears to be, in effect, a continuing adverse listing. The practical implication is that the individual is branded a bad risk even though the specific default listing has been purged. I do not believe that this problem can be resolved by TICA making efforts to clarify the nature of the listing with members. In my view, the listing may be misleading and for this reason is inaccurate and incomplete because it does not explain the nature of the rental problems, if any.
93. TICA's April 2004 submission disputes this view on the grounds that the full meaning of the listing will be apparent when a member contacts the property manager that made the listing. However, I am not satisfied that this is the consistent practice of TICA's members and in the absence of evidence as to this practice, I am of the view that in at least some circumstances members will impute a negative meaning from the term 'Tenancy History Only' and will decide on this basis not to proceed with the application.
94. Further, if the tenant is advised that their application did not proceed because of a tenancy history listing and wishes to establish the reason for the listing he or she can only do so by going back to the member that made the listing.
Findings in relation to the use of the 'Tenancy History Only' listing
95. I find that the use of the term 'Tenancy History Only' results in the information being held by TICA being inaccurate, incomplete and out-of-date. I therefore find that, in continuing to use this listing category, TICA is not taking reasonable steps to make sure that the personal information it holds is accurate, complete and up-to-date, in breach of NPP 3.
96. My Determination No. 3 of 2004 also deals with use of the 'Tenancy History Only' listing with respect to the timeframes for retaining listings.
Dispute resolution processes and NPP 3
97. When describing the steps it takes when a tenant alleges that their personal information is inaccurate, incomplete or out-of-date, TICA advises that the member is contacted and informed of the dispute. The member must provide copies of the same evidence that is sought in random checks. If the tenant continues to dispute the listing, the record is marked as 'disputed by tenant' for a period of 30 days whilst the tenant can have the matter heard by a court or tribunal. On receipt of a tribunal or court order which proves that a listing is incorrect TICA will immediately amend or delete a listing and advise the member of the inaccuracy.
98. To comply with its obligations to ensure information is accurate, TICA must, in conjunction with its members, take responsibility for any dispute that arises about the accuracy of personal information in its database and ensure that such disputes are resolved. Unless it does so, it cannot be confident that the information it holds is accurate. TICA's April 2004 submission states that it does take appropriate responsibility for disputed listings.
99. It is relevant to consider the potential significance of a listing for an individual, particularly if it may be inaccurate, incomplete or out-of-date. In this instance, as noted earlier, this could include inability to gain any housing on the residential rental market. This will impact upon what is reasonable for ensuring accuracy. In the present case I am of the view that for the steps in relation to disputes about accuracy to be reasonable they would need to include some of the following elements:
- taking details of the individuals dispute and putting the concerns to the member;
- requiring members to respond to the dispute within a reasonable timeframe, in most cases this would be not more than seven days;
- seeking sufficient evidence to establish if the criteria set in relation to a particular listing has been met - for example if rental arrears can only be listed after a specified number of days what evidence does the member have that this was the case;
- removing listings where the member cannot provide the necessary evidence, including because it is no longer in business;
- providing detailed information to the individual concerned about the members' response and advising them of other avenues of redress including to this Office; and
- keeping records of disputes and the resolution process, including what evidence was provided by the member and how TICA was satisfied about the member's claims - for example did it sight the documentary evidence.
100. TICA states that if a member cannot provide the necessary evidence to validate a listing the listing is removed. Its April 2004 submission states its dispute resolution practices do include the elements listed above. In support of this view TICA provided the Office with documentary evidence in relation to a number of disputed listings it had investigated. I acknowledge that the documents provided do show that in these instances many of the steps above were included. The documents provided do not include specified response times or evidence that notes are kept on a tenant's file. I also note that these documents relate to dispute investigations commenced after I commenced my investigation.
101. TICA's April 2004 submission confirmed that where relevant TICA will advise tenants that it will mark files as disputed for 30 days to allow the tenant to apply to the relevant tenancy tribunal. The submission puts the view that this is appropriate as the fact that a tenant disputes an amount owing does not necessarily have implications for whether the listing is accurate, complete and up-to-date but rather is a matter to be negotiated between the parties or arbitrated by a tenancy tribunal.
102. However, in the circumstances of this complaint, TICA's obligation is to take reasonable steps to make sure the personal information it holds is accurate, complete and up-to-date. I do not expect TICA to take on an arbitration role in relation to disputed amounts; however, I do not consider it is reasonable for TICA to limit its action to marking the listing disputed for 30 days subject to a tribunal ruling. There may be reasons why a person is unable to seek arbitration of their matter by a tribunal - for example, because the subject of the dispute falls beyond the jurisdiction of the tribunal, or because a person becomes aware of a listing after the time limit for making an application to the relevant tribunal has passed.7 As discussed below (see [107 - 107]) as a minimum, I consider TICA should advise tenants of the option of seeking to have a statement to the effect that the listing is disputed associated with the listing.
Findings in relation to Dispute Resolution and NPP 3
103. I find that with respect to amounts disputed TICA's current practice of only marking listings disputed for 30 days means that in this respect it is failing to take reasonable steps to make sure that the personal information it holds is accurate, complete and up-to-date. I therefore conclude that in this regard TICA has breached NPP 3.
NPPs 6.5 and 6.6
104. TICA is only obliged to comply with NPPs 6.5 and 6.6 in respect of personal information it collected after 21 December 2002.
105. NPP 6.5 states that, if an individual can establish that personal information is not accurate, complete and up-to-date, the organisation must take reasonable steps to correct the information. TICA has advised that if an individual establishes that a listing is inaccurate it will remove the listing regardless of when it was made. I accept this and find that TICA takes reasonable steps to correct information where an individual establishes that it is inaccurate.
106. NPP 6.6 says that if an individual and an organisation are unable to agree about whether information is accurate, up-to-date and complete, the organisation must, at the request of the individual, take reasonable steps to associate with the information the individual's claim to this effect. I am satisfied that at present TICA does not take any steps in this regard other than, as noted above, to mark disputed listing as 'disputed by tenant' for a period of 30 days.
107. The consequence of this approach is that in cases where the individual does not proceed to take the matter to a court or tribunal or is unable to do so (for example because the matter falls beyond jurisdiction or arises out of time for the commencement of proceedings), TICA will still remove the disputed marker 'disputed by tenant' after 30 days, thereby leaving in place the disputed information without any indication to future users of the dispute.
108. I therefore find that TICA is not taking 'reasonable steps' to associate with an individual's personal information an individual's claim as to the accuracy, completeness or currency of that information. Consequently, I find that TICA is in breach of NPP 6.6.
109. TICA has advised the Office that it is willing to investigate options to enable individuals to note they believe their personal information to be inaccurate, incomplete or out-of-date. I would commend such an approach and suggest that in the case that a statement provided by a tenant is unduly long, it would be reasonable for TICA to suggest a shortened version.
Summary of findings on NPP 3 and NPP 6.5 and 6.6
110. Whilst I am satisfied that TICA employs some steps to ensure that the information it holds is accurate, complete and up-to-date, my preliminary view is that I do not consider its present practices satisfy the obligation imposed by NPPs 3, 6.5 and 6.6. For this reason I find that TICA has failed to take reasonable steps to make sure that the information it collects, uses and discloses is accurate, complete and up-to-date and it has therefore breached NPPs 3, 6.5 and 6.6.
111. I find that TICA has breached NPPs 3, 6.5 and 6.6 by:
- using an agreement with its members that does not sufficiently specify the data quality standards required;
- failing to take sufficient steps to check listings by property managers and not requiring minimum identification requirement before listing;
- failing to advise tenants contemporaneously that they have been listed;
- using a 'pick list' method of reporting tenancy history, which relies on one category that is broadly defined and on descriptions that are brief, not consistently defined and are not mutually exclusive;
- providing an inadequate dispute resolution process; and
- failing to provide mechanisms to correct records where the individual concerned has established they are not accurate, complete and up-to-date or to associate a statement to this effect when there is a dispute about accuracy, completeness or currency
112. I therefore find this element of the complaint substantiated and declare that TICA has engaged in conduct constituting an interference with the privacy of individuals who are members of the class identified in the complaint. I declare that TICA should not repeat or continue such conduct.
113. The complainants have asked me to make a declaration requiring TICA to develop new forms to meet its obligations under NPP 1.5. I am not satisfied that I should do so. While I have declared that TICA should not repeat or continue conduct which constitutes an interference with the privacy of an individual, I do not, in my view, have the power under section 52(1)(b)(i)(B) to otherwise generally prescribe how TICA should act.
114. I am also of the opinion that section 52(1)(b)(ii) does not provide the basis for making a declaration of the type sought by the complainants as to the future conduct of TICA. I am not, on the information presently before me, satisfied that there has been any identifiable loss or damage suffered by the complainants that would be redressed by a course of conduct required by such a declaration.
115. However, I do consider the suggestion made by TU QLD to be helpful in assisting TICA to meet its obligations under NPPs 3, 6.5 and 6.6, in promoting 'best practice' under the Privacy Act and allowing the members of the class upon whose behalf this complaint has been brought to be better assured that personal information that TICA holds about them will be accurate, complete and up-to-date.
116. In my view the following steps, that include many of the suggestions made by TU QLD and also that TICA has indicated it is willing to consider, would be a reasonable set of measures to ensure that the personal information it currently holds on the database is accurate, complete and up-to-date when used or disclosed; and that the personal information it collects in the future is accurate, complete and up-to-date. I note that the set of measures below are reasonable steps in the context of this complaint and at this time and taking account of TICA's operational circumstances. It is open to me to find that in another set of circumstances that these steps would not be all that was required.
117. I recommend to TICA that it undertake the following action and that to the extent possible these actions are completed by mid July 2004 unless I suggest otherwise below.
- Develop, in consultation with my Office, a detailed description of all listing categories that are mutually exclusive, include objective criteria for listing, are consistent with state and territory tenancy legislation and do not include the terms 'breaking tenancy agreement' or 'tenancy history only'. Provide the finalised listing categories to my Office, make them available on TICA's website and provide a copy to all of TICA's members.
- Specify to its members that the listing categories are to be made available to all individuals at no charge when a tenancy agreement is signed and make the listing categories available on TICA's website and on request to individuals at no charge to the individual.
- Develop in consultation with my Office, detailed guidelines for the categories, for example, TICA will include the number of days overdue before a 'late payment' can be listed. Provide the finalised guidelines to my Office and make the guidelines available with listing categories wherever published or made available.
- Allow members to only use the terms 'objectionable behaviour' and 'repeated breaches' if there is a relevant tribunal order.
- Provide tenants with the ability to add a statement to any listings which they dispute.
- Develop, in consultation with my Office, criteria by which members may validate listing. Remove listings that cannot be validated by members either in the course of TICA's random checks or where the individual concerned has disputed the listing.
- Continue to conduct at least 50 random checks a week to validate listings and regular data cleansing. In particular, delete or amend records that are found to be inaccurate, provide advice of deletion or amendment to the individual concerned and to any other members that have accessed the record since it was listed, provide feedback to the member concerned and keep detailed records of the checking process including the member name, date of the check, results of the check and action taken.
- Ensure that individuals are advised, either by TICA or its members that a listing has been made and that this will occur when individuals complete a tenancy application and when the individual is listed.
- Commission an independent audit of the Tenancy History and Enquiries database that will test the accuracy, completeness and currency of 500 listings on the databases in terms of NPP 3 and TICA's stated operating procedures. Provide a de-identified copy of the audit report to my Office within twelve months of the date of this Determination.
- In the 12 months from the date of this Determination, delete all records that do not contain adequate information to uniquely identify an individual. As a minimum requirement I would expect this to be a name, date of birth and another official document number (subject to the requirements of NPP 7).
- Develop an audit trail for both the Tenancy History Database and Enquiries Database to enable TICA to monitor modification of the databases.
- Continue to provide members with training and information on the appropriate use of the TICA system.
- Alter the agreement with members to ensure that it reflects TICA's obligations under the NPPs.
Malcolm Crompton Federal Privacy Commissioner
Dated 16 April 2004Footnotes
1. I note that section 38C of the Privacy Act gives me the power to amend a complaint so that it can be dealt with as a representative complaint. In the event that it is necessary to amend the complaints received from TU NSW and the individuals concerned so as to make them a part of the wider representative complaint, I would do so pursuant to section 38C of the Act.
2. I note here that the Privacy Act does not require complainants to specify which NPPs may be relevant to the complaint they are making.
3. TICA is not bound by an approved privacy code in terms of section 13A(b)(ii) of the Privacy Act..
4. Article 25 Universal Declaration of Human Rights available at http://www.un.org/Overview/rights.html.
5. I note that TICA was offered the opportunity to make any submissions or provide any material to me in relation to this exemption. I did not receive any submissions or material in relation to this issue.
6. I note that section 6D(4)(c) of the Privacy Act does not prevent a body corporate from being a 'small business operator' only because it discloses personal information with the consent of the individual, or as required or authorised under legislation. I find that TICA does not have the consent of all of the individuals whose personal information appears on their database (in particular, those individuals whose personal information was collected before 21 December 2002) and is disclosed to TICA's members. I note that TICA has not claimed that it does have such consent, although it was given the opportunity to do so.
7. I note, for example, that NSW tenancy legislation has time limits, which usually begin when individuals become aware of an alleged tenancy agreement breach, after which the dispute can be brought to the Consumer Trader and Tenancy Tribunal (CTTT). This could mean that if a TICA listing is about a disputed event that occurred, for instance 60 days before the listing, the tribunal may not have the jurisdiction to hear the matter. In addition, the CTTT has no specific jurisdiction to hear matters involving disputed TICA listings.