Australia: Care Required When Government Agencies Provide Personal Information to Regulators

Last Updated: 18 June 2004
Article by Duncan Giles and Danet Khuth

A determination recently issued by the Office of the Federal Privacy Commissioner (OFPC) has highlighted the need for Federal Government agencies to carefully consider the best way to balance the competing obligations of protecting the privacy of their employees and customers, and the need to cooperate and share information with regulators.


Complaint Determination No 5 of 2004 (Determination) involves a complaint lodged by an employee (complainant) of the Australian Capital Territory Department of Justice and Community Safety (JACS) under section 36 of the Privacy Act 1988 (Cth) (Privacy Act). The complainant alleged that JACS engaged in conduct constituting an interference with the complaint's privacy by disclosing personal information about the complainant to the Australian Capital Territory Ombudsman (Ombudsman) without proper authorisation under the Privacy Act. The complainant sought a letter of apology from the JACS officer involved and financial compensation of $20,000 for damages caused to the complainant's reputation which allegedly ruined the complainant's employment opportunities in the public service.

The Privacy Commissioner found in favour of the complainant and determined that the disclosure by JACS of certain personal information about the complainant to the Ombudsman breached Information Privacy Principle (IPP) 11. However the Commissioner declined to grant the complainant the $20,000 compensation requested because the complainant was not able to satisfactorily demonstrate that the complainant had suffered the alleged damages.

The facts

The complainant was employed by JACS and has since accepted a voluntary redundancy. During the course of working for JACS, the complainant made a public interest disclosure (PID) to the Ombudsman alleging that JACS had failed to adequately enforce provisions of the Liquor Act 1975 (ACT) in relation to offences concerning minors and associated issues of public safety. These allegations were similar to allegations that the complainant had already raised internally with JACS.

In response, the Ombudsman's Office wrote to JACS stating that the Ombudsman intended to investigate the complainant's PID and requested JACS provide copies of any relevant information. In meeting this request, a JACS employee (JACS officer) spoke with the Ombudsman on two occasions. During the course of these conversations, the identity of the complainant and a range of personal information about the complainant, including employment-related issues, were revealed and file notes were made by the Ombudsman Officers detailing these revelations. The complainant eventually became aware of the file notes and made a complaint to the OFPC.

The law

Federal Government agencies are bound by the IPPs contained in section 14 of the Privacy Act, which provide the standards for handling personal information. This particular complaint raised the issue of whether there was an improper disclosure of personal information.

In general, IPP 11 prohibits agencies from disclosing information to a person, body or agency (other than the individual concerned) except under a few prescribed circumstances. Most relevantly, JACS argued that the disclosures it made about the complainant fell within two exceptions under IPP 11, namely those provided under IPP 11.1(a) and IPP 11.1(d).

IPP 11.1(a) permits disclosure where the individual concerned is reasonably likely to have been aware that the information is of the kind that is usually passed to the agency (ie the Ombudsman) and IPP 11.1(d) permits disclosure where it is required or authorised by or under law.


The Commissioner found that the JACS officer had disclosed to the Ombudsman that the complainant had experienced work problems and had sought a voluntary redundancy without success. The JACS officer also disclosed personal information about the complainant's racing industry activities and about the complainant's requests to JACS for the complainant to hold a bookmakers licence.

In deciding whether the above disclosure fell within the exceptions in IPP 11.1(a) or IPP 11.1(d), the Commissioner found that a reasonable person in the complainant's position, ie an experienced employee of JACS with reasonable familiarity with grievance and investigation, would be 'reasonably likely to be aware' that IPP 11.1(a) did permit JACS to disclose personal information about the complainant's identity and the fact that the complainant had previously made the same complaints internally. However, the Commissioner found that the other information disclosed in relation to the disputes, grievances and complaints between the complainant and JACS in relation to employment matters, and the complainant's bookmaking interests (Additional Disclosures) were not sanctioned by IPP 11.1(a) because they are not inherently related to the PID.

With respect to JACS' second contention that IPP 11.1(d) permitted its disclosure because they were of a kind 'required or authorised by law', JACS argued that the Additional Disclosure was needed in order to allow the Ombudsman to decide whether the PID made was frivolous, vexatious or not made in good faith. This would in turn assist the Ombudsman in deciding whether to proceed with the complaint. The Commissioner found that the authority for disclosure given by the relevant legislation is not unlimited but rather restricted by a test of relevance. The issue is whether the personal information disclosed by JACS went beyond what was relevant to the Ombudsman in deciding whether to proceed with the PID. The Commissioner reached the conclusion that the Additional Disclosures did not add to the question of whether the PID was made in bad faith and they went beyond the provision of personal information to the Ombudsman.

Hence, the Commissioner issued the Determination that the Additional Disclosures made by JACS to the Ombudsman interfered with the complainant's privacy. He also declared that JACS should not repeat such conduct and should apologise to the complainant for disclosing the complainant's personal information.

In relation to the complainant's request for compensation, Commissioner found that the disclosures did not occur outside the boundaries of the Ombudsman's investigating team and were not known more widely in the community. As a result, the Commissioner declined to make a declaration as to compensation because the complainant did not satisfactorily demonstrate the complainant suffered the alleged damages.

Implications of the Determination for privacy in general

From the perspective of Federal Government agencies, the decision emphasises the fact that when an agency provides information about an employee or customer as part of meeting the request of a regulator, it must carefully consider whether such disclosure is relevant and does not go beyond the purpose for which the information was requested. Otherwise the agency may find itself liable for damages if it is found that the disclosure breached IPP 11.

For the individual whose information has been disclosed as part of a regulator's investigative functions, this Determination demonstrates the remedy available to them when such disclosures are found to be unauthorised. While in this particular case, the Commissioner had declined to make a declaration as to compensation, it follows that had the complainant been able to show that he/she suffered injury to reputation and future employment opportunities as a result of the disclosures, the Commissioner may very well have awarded damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions