If you believe that Grubb's case resolved the question of what information collected by telecommunications service providers is 'personal information' for the purposes of the Privacy Act 1988 (Cth) (Privacy Act), you should think again.
Mr Grubb, a Telstra customer, asked Telstra to provide him with 'all the metadata information Telstra has stored about my mobile phone service'. Mr Grubb filed a complaint with the Office of the Australian Information Commissioner when Telstra did not provide all of this information. The Privacy Commissioner found that Telstra had breached the National Privacy Principles. Telstra successfully applied to the Administrative Appeals Tribunal and the Commissioner then appealed to the Federal Court.
Telstra was again successful in the Federal Court (Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4). The narrow issue considered by the Federal Court was the meaning of 'personal information' as defined in the Privacy Act at the time Mr Grubb made his original request (July 2013). In other words, the issue was whether the withheld metadata was information or an opinion about an individual (Mr Grubb) whose identity is apparent, or could reasonably be ascertained, from the information or opinion. In a decision handed down in January 2017, the Federal Court found that to fall within the definition, the personal information held by the relevant entity must satisfy two criteria. First, it needed to be about an individual and secondly, the identity of that individual would need to be apparent or ascertainable from the information or opinion. The Privacy Commissioner fell at the first hurdle as he did not seek to establish that the relevant information, being mobile network data, was about Mr Grubb.
But this is not the end of the matter. 'Personal information' is, as acknowledged by the Federal Court, a broad concept and whether information or an opinion is 'about' an individual requires an evaluative conclusion on a case by case basis. The type of information or opinions falling within the definition may also be impacted by other Commonwealth legislation, such as section 187LA of the Telecommunications (Interception and Access) Act 1979 (Cth).
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