Greenleaf, Graham --- "Determination: Minister for Administrative Services and Secretary, Department of Administrataive Services" [1994] PrivLawPRpr 127; (1994) 1(9) Privacy Law & Policy Reporter 170

Determination: Minister for Administrative Services and Secretary, Department of Administrative Services

Australian Privacy Commissioner, Complaint Determination 2/1993, 22 December 1993, Federal Privacy Handbook (publication pending)

Privacy Act 1988 (Cth) - meaning of 'personal information' - IPP 11 (disclosure) - s 52 determination powers - s 44 notice to provide information - journalists

Complainant A, then a member of Parliament, had given the Minister (Senator Bolkus) a letter concerning the travel entitlements of himself and a member of his staff, complainant B. The Minister refused the request contained in the letter, and referred the letter to the department for action. The Minister and A were protagonists on opposite sides of a contentious political issue at the time. Shortly thereafter, an article in the Sydney Morning Herald's 'Stay in Touch' column quoted a few lines from A's letter to the Minister, identifying both A and B. A was unaware of the Minister's decision until he read about it in the Herald.

The Minister and the department contended that 'personal information' under the Privacy Act does not include any information capable of being disclosed under the Freedom of Information Act 1982 (Cth). The Commissioner rejected this argument as it would lead to the 'absurd' result that no records in Commonwealth administration would be protected by the Privacy Act.

The editor of the Herald refused to co-operate with the Commissioner's inquiries as to the source of the story. The Commissioner issued a notice under s 44 to the journalist responsible for the story, to require the journalist to attend before the Commissioner and give further information. Complainant A did not wish this course to be pursued, and the Commissioner withdrew the notice.

The Minister, the Minister's staff involved in handling the correspondence, and the relevant officers of the department all denied being responsible for any improper disclosure of the contents of the letter. Complainant A contended that the information was 'more likely to have come from the Minister's office rather than the department because of a political controversy involving the Minister and A which was alive' (at the relevant time).

The Commissioner concluded that it was highly unlikely that A's own staff had disclosed the information, or that (given the security practices followed in the Minister's office and the department) that the journalist had obtained the information by clandestine means. Consequently, he was 'reasonably satisfied that the most likely explanation is that there was a disclosure of personal information in contravention of IPP 11 from some part of Commonwealth administration.

However, he concluded that he was unable to identify the source of the information, as there was 'no conclusive evidence linking the disclosure to either the Minister's office or the relevant unit of the department. He therefore declared under s 52(1)(b)(iv) that it would be inappropriate for any further action to be taken.

Comment

The complaint shows a clear need for an amendment to the Privacy Act to provide that, where the Commissioner is satisfied that a breach of an IPP has occurred by a Commonwealth government entity bound by the IPPs, but is unable to determine which entity committed the breach, the complainant should be entitled to have any compensation which would otherwise be payable paid from consolidated revenue.

Graham Greenleaf