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Complaint Determination No 2 of 1993

Case Citation: Determination No. 2 of 1993

Between "A", First Complainant and "B", Second Complainant; and Minister for Administrative Services, First Respondent, and the Secretary, Department of Administrative Services, Second Respondent

Made under:Privacy Act 1988, section 52

History

This determination relates to complaints lodged by "A" and "B" in June 1990 under section 36 of the Privacy Act 1988 against the Minister for Administrative Services and the Secretary, Department of Administrative Services, regarding an alleged unauthorised disclosure of personal information about the complainants.

Background

This determination relates to a complaint lodged by A. The complainant was at the time of his complaint a Member of Parliament. The second complainant B was an adviser on his staff. A lodged his complaint with me on 1 June 1990. It arose from an item published in The Sydney Morning Herald which concerned A and B. The item referred to information which was identical to that which A had given to the Minister, the first-respondent, in a letter seeking a reimbursement in respect of an expense incurred by A in connection with his responsibilities as a Member. The expense related to the cost of upgrading a fare for B from Melbourne to Canberra.

B later lodged a complaint in similar terms to A's.

A and B contended that the material contained in the letter was "personal information" within the meaning of the Privacy Act 1988 and that for The Sydney Morning Herald to have obtained the information there must have been a disclosure in contravention of Information Privacy Principle 11 of the Act by either the Minister or the Department, to whom the letter was referred for action. The item which appeared on 15 May 1990 in The Sydney Morning Herald''s "Stay in Touch" column was as follows:

"Exercising Power is Like Walking A DogSometimes, there must be special pleasures being a Minister. The Administrative Services Minister, Nick Bolkus, probably knows this. The Member for …, [A] … was involved in the recent High Court challenge to the Government's decision to increase the postal allowances for MPs more than threefold. In order to hear the judgement, which upheld the challenge, [A] flew to Canberra on (a certain day) and took a staff member, [B] In a letter to Mr Bolkus, [A] says he "was unable to obtain an economy class seat for [B] and, because "it was essential for [B] to accompany me on the flight, I was forced to obtain a first lass seat". Might it be possible for me to get my money back, inquired [A] who had paid for the tickets on his own account? No, it wouldn't, said Senator Bolkus."

The material parts of A's letter to the Minister state:

"On … 1990, it was necessary for my Assistant Private Secretary, [B] to accompany me to Canberra to attend the High Court judgment in the Postal Allowance case and deal with other matters. I was unable to obtain an economy class seat for [B] on the same Australian Airlines flight TN.406 and as it was essential for [B] to accompany me on the flight, I was forced to obtain a first class seat on that flight. This was charged to my Australian Airlines account. As you know, it has not been easy in recent times to get the precise bookings we ask for on the airlines and, in the circumstances, I trust that this expenditure may be approved. If not, I should be pleased if you would let me know and I will pay the additional cost."

The Minister made a note at the foot of the letter not approving the request; and referred the letter to the Department for action. The letter was with the Department from … to … 1990. Those who had knowledge of the existence of the letter included the correspondence-handling staff in the Minister's office, the Minister and relevant officers in the Members' entitlements area of the Department.

1. Investigation

My office's investigation of this complaint had these components:

(i) the provision of information in writing by the Minister and the Department in response to matters raised by my staff, or by the complainants;

(ii) an inspection of administrative practices followed in the Department and in the Minister's office in relation to this type of correspondence, the inspection being undertaken by the Director, Privacy Compliance and Senior Compliance Officer;

(iii) the supply of some information by the editor of The Sydney Morning Herald; and

(iv) a conference held on 5 August 1991 attended by relevant staff from the Minister's office and the Department and conducted by me. This conference was later adjourned at the request of the respondents and was not reconvened on the basis that the respondents opted to make a joint submission in writing.

2. Applicability of Act to Complaint

At the conference held on 5 August 1991 a legal officer with the Australian Government Solicitor, representing the Minister and the Department submitted that the contents of the letter that A had sent to the Minister were not in fact protected by the Privacy Act. It was contended that "personal information" as defined under the Privacy Act does not include any information relating to an individual which is capable of being disclosed under the Freedom of Information Act.

In my view this proposition has no legal basis. The Act's definition of personal information is very broad and is as follows:

"personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion".

"personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion".

These records retain the protection of the Act whether or not they may be released in response to a Freedom of Information Act request. If it were otherwise (and the Australian Government Solicitor's representative's view were to be upheld) then no records in Commonwealth administration would be protected by the Privacy Act as they are all potentially releasable under the Freedom of Information Act. This is an absurd result, which could not in my view have been contemplated by the Parliament.

The Privacy Act itself deals with the circumstances in which the personal information subject to the protection of the Act may be disclosed. Exception (d) of Information Privacy Principle 11 contemplates the possibility that personal information protected by the Act may be disclosed where that disclosure is authorised by another law. But it does not follow that because the record containing personal information governed by the Privacy Act can be disclosed lawfully to third parties, its contents never had the protection of the Privacy Act. As A pointed out at the statutory conference, had there been an FOI request (say by The Sydney Morning Herald) for the contents of his letter to the Minister, A may well have been entitled to receive notice of the application and to make any submissions he wished to the Minister or the agency before it made a decision whether or not to disclose. See Freedom of Information Act s.27 (information relating to professional affairs); or s.27A (information relating to personal affairs).

The only possibly relevant exclusion from the definition of record concerns "generally available publications". A letter written in confidence by a Member to a Minister relating to official entitlements clearly is not a "generally available publication."

3. Observations

I am satisfied that the contents of The Sydney Morning Herald article were derived from the letter sent by A to the Minister. As can be seen from a comparison of the text of the newspaper article and the text of the letter, some of the words quoted in the article are exact transcriptions of the contents of the letter. It is clear, I consider, that the author of the article had obtained access to the original or a copy of the letter.

I am satisfied that the contents of The Sydney Morning Herald article were derived from the letter sent by A to the Minister. As can be seen from a comparison of the text of the newspaper article and the text of the letter, some of the words quoted in the article are exact transcriptions of the contents of the letter. It is clear, I consider, that the author of the article had obtained access to the original or a copy of the letter.

As to the possibility that A or his staff made the disclosure that seems to me to be unlikely. The information appears to have been selectively leaked to a journalist writing a type of gossip column. It was presented in a way that would tend to embarrass the subjects, A and B. In these circumstances it seems to me to be highly unlikely that A (or B) would have sought to disclose this information. Moreover, A was not aware of the Minister's decision at the time the article appeared.

It is possible that there may have been a lapse in security in the Minister's office or the Department. I have undertaken, as previously noted, an inspection of relevant administrative practices. While this possibility cannot be excluded absolutely, I was satisfied that reasonable standards of security appropriate to the nature and volume of this type of correspondence were likely to have been in place in April and May 1990 in the relevant areas.

In the course of my investigation I did write formally to the editor of The Sydney Morning Herald requesting any information that he could give in relation to the circumstances leading to the publication of the story. While the editor refused to co-operate with my inquiries, claiming that the journalists' sources were confidential, he did give some information in relation to the publication. It appears that for several days before the article appeared the journalist responsible for it had been working from Parliament House, Canberra. The advice from the editor was that the column had been prepared in Canberra.

In order to obtain further information on this matter I issued a formal notice under section 44 requiring the journalist to attend before me to give further information. However A, the first-complainant, later indicated to me that he did not wish to see this course of action pursued. Consequently, I withdrew that notice.

At the conference A advanced the view that the disclosure 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 early in 1990. That controversy related to the objections A had made to a Government policy which provided a substantial increase in the postage allowance available for use by Members.

A had been the plaintiff in High Court proceedings which had resulted in the government action in that regard being declared unlawful with the consequence that the government was obliged to bring a bill before Parliament to reinstate this policy. That bill had gone before Parliament in 1990. A, and the first-respondent, the Minister for Administrative Services were the leading protagonists for the Opposition and the Government respectively in relation to the desirability of the bill.

A claimed that it would advantage the Government in securing support for the bill from the Australian Democrats in the Senate if the Government could show A had sought to misuse official entitlements, given that A's primary objection to the bill was that the new entitlements it gave members were inappropriate.

Consistently in correspondence to me and as previously stated, the Minister has denied being responsible for any improper disclosure of the contents of the letter; as have all his staff involved in the handling of the relevant correspondence. Similar denials have been furnished to me by the relevant officers of the Department. In addition there is no evidence before me from the journalist who published the item.

I consider that to draw the inference which A proposes having regard to the political context of the days surrounding this disclosure (i.e. that the Minister's office was responsible for disclosure) would be unsafe, given the denials which the Minister and his staff have furnished to me.

In light of the security practices followed in the Department and in the Minister's office, I consider that it to be highly unlikely that access was obtained by the journalist through surreptitious or clandestine means. On the other hand there is insufficient evidence before me to specify whether either one of the agencies who are respondents to this complaint was responsible for the disclosure.

Consequently I am not in a position to make an adverse finding of fact specific to either agency (or to both agencies).

I am reasonably satisfied that the most likely explanation is that there was a disclosure of personal information in contravention of Information Privacy Principle 11 from some part of the Commonwealth administration. But I am unable to say where the disclosure occurred within the portfolio, nor am I able to identify whether the disclosure was accidental or otherwise.

In light of my conclusion that the most likely explanation for the source of the journalist's story was an unlawful disclosure in contravention of Information Privacy Principle 11, I have considered whether I should find formally under section 52(1)(b) that the complaint is substantiated even though I am not in a position to identify precisely which agency was (or which agencies were) in breach. I have received a submission from the second-respondent that to follow this course would result in an adverse impression nonetheless being created, because the agency would remain seen as a possible offender when there is no specific evidence to that effect.

I am satisfied that the disclosure in issue in this case emanated from within Commonwealth administration. However I am unable to identify the source of the disclosure. There is no conclusive evidence linking the disclosure to either the Minister's office or the relevant unit of the Department.

4. Determination

Accordingly, I declare under section 52(1)(b)(iv) of the Act that it would be inappropriate for any further action to be taken in this matter.

 

Dated 22 December 1993

KEVIN O''CONNOR Privacy Commissioner