Recent Cases: Commonwealth
'AQE' and Noonan Real Estate Agency Pty Ltd (Privacy) [2024] AICmr 237
Facts
AQE (“complainant”) was a tenant of a property managed by Noonan Real Estate Agency Pty Ltd (“respondent”). The complainant posted a negative google review on the respondent’s google business page, in which the respondent replied, including the complainant’s name, occupation and financial circumstances in their response.
The complainant made a privacy complaint. In response, the respondent removed the complainant’s first name but not their surname. The complainant applied to the Office of the Australian Information Commissioner (“OAIC”) for review and requested compensation in the sum of $15,000.
The respondent subsequently removed its response on the google page.
Held
The Commissioner held that the respondent had interfered with the privacy of the complainant by disclosing the complainant’s information under APPs 1.2, 1.3 and 6.1.
Reasoning
APP 6 – Disclosure of the complainant’s personal information
Personal information
The Commissioner determined that the personal information used in the review response by the respondent was not personal information held by the respondent, as it was sourced from the complainant’s LinkedIn page, thereby constituting a generally available publication that was not a ‘record’ under the Privacy Act.
Primary purpose of collection
The Commissioner found that the primary purpose of collecting the respondent’s personal information related to tenancy management, specifically facilitating leasing to the complainant.
Purpose of disclosure
The Commissioner was satisfied that as the respondent had disclosed the complainant’s personal information in the review response in order to defend the business, it was for a secondary purpose, rather than regarding a tenancy management issue.
Disclosure for a secondary purpose
The exceptions to APP 6 were not applicable, as it was possible for the respondent to respond to the google review without disclosing the complainant’s personal information. Further, the Commissioner noted that a reasonable person in the complainant’s position would not have expected the respondent to disclose their personal information in that manner. The respondent had breached APP 6.1 by disclosing the complaint’s personal information in the review response, thereby interfering with the complaint’s privacy.
APP 1 – Open and transparent management of personal information
APP 1.2
The Commissioner was not satisfied that the respondent had taken reasonable steps to implement practices, procedures and systems that would have allowed it to fulfil its APP requirements at the time of the complaint. This was shown in the respondent’s response to the privacy complaint, in which further release of the complainant’s personal information was threatened.
APP 1.3 and 1.4
The Commissioner found the respondent’s privacy policy at the time of the complaint to be non-specific, general and lacking in personal information handling practices. Further, it did not outline how a complaint could be made, nor how it would be dealt with. Therefore, the Commissioner held that the respondent had breached APP 1.3 and 1.4 by failing to have a clearly expressed, up to date privacy policy.
Remedies
Non-economic loss
Despite the submitted evidence of psychological harm and loss, the Commissioner was not satisfied that any such loss for the complainant was directly caused by the respondent’s disclosure of the complainant’s personal information. The relationship between the respondent and the complainant had deteriorated prior to the review response, as evidenced by previous complaints. The Commissioner was not satisfied that the complainant’s attendance at the psychology consultation was sufficient to demonstrate that the complainant suffered non-economic loss as a result of the privacy breach. The invoice did not specify the purpose of the consultation, nor its relevance to the privacy breach. Therefore, the Commissioner held that the complainant was not entitled to compensation for non-economic loss.
Economic loss
The Commissioner held that the complainant was not entitled to compensation for time spent pursuing their complaint, as claimed. The claim of suffering economic loss by being late to work or not attending work following the privacy breach, could not be quantified and there was no evidence to show that the loss was a direct result of the privacy breach. With regard to the invoice for the psychology consultation, for the reasons discussed above, the Commissioner was not satisfied that the complainant was entitled to the claimed sum of $300 for the appointment. Overall, no compensation was awarded.
'AQG' and Department of Home Affairs (Freedom of Information) [2024] AICmr 239
Facts
‘AQG’ (“applicant”) applied to the Department of Home Affairs (“Department”) for access to information relating to the applicant’s registration as a migration agent.
The Department refused the applicant’s request under s 24A, submitting that it had undertaken all reasonable searches and the documents did not exist. The applicant sought internal review. The Department generated 8 documents under s 17 of the FOI Act, in which it refused access in full under ss 47E(c) and 47F.
The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review.
Held
The Commissioner was satisfied that the Department had taken all reasonable steps to locate documents relevant to the request under s 24A of the FOI Act, and other documents could not be found or did not exist. Further, the Commissioner held that the documents were exempt in full under s 47E(c) and disclosure would have been contrary to the public interest under s 11A(5).
Reasoning
Searches – s 24A
Based on the evidence submitted by the Department of searches in other business areas for relevant documents, as well as the Department’s production of 8 documents, the Commissioner was satisfied that the Department had taken all reasonable steps to locate documents relevant to the request and that other documents could not be found or did not exist.
Management of personnel exemption – s 47E(c)
The Commissioner identified that some documents related to the recruitment of personnel and other documents related to the assessment and training of personnel. The Commissioner highlighted the accepted view that the disclosure of information about public servants’ education and training could reasonably be expected to be discomforting to personnel and affect their willingness to participate fully and frankly in their future assessment and management, thereby substantially adversely affecting the management of personnel.
It was unlikely that the named staff members would have reasonably expected information of that nature to be publicly released by the Department for a purpose unrelated to the management and assessment of personnel. The Commissioner held that the documents were conditionally exempt in full under s 47E(c) of the FOI Act.
Public interest test – s 11A(5)
The Commissioner found that the favours weighing against disclosure significantly outweighed those in favour. Whilst acknowledging that there was a general public interest in accessing government-held information, it was noted that disclosure would not have meaningfully increased scrutiny, discussion, comment or review of government activity. Rather, disclosure could be reasonably expected to have prejudiced the Department’s management functions and its ability to collect similar information in the future. Additionally, disclosure could be expected to have prejudiced the protection of the staff members’ right to privacy. Therefore, disclosure would have been contrary to the public interest making the documents exempt in full under s 47E(c).