Commentary
- This decision was based on the preceding legislation to the Privacy and Data Protection Act 2014 (Vic.) (PDP Act), the Information Privacy Act 2000 (Vic.) (IP Act).
s 13 – Entities subject to the PDP Act
- The facts of this decision highlight some potentially unresolved areas of the PDP Act. Under s 13 of the PDP Act, both a Council and its Councillors (as persons appointed for a public office) have independent obligations to comply with the IPPs. Complainants can therefore make a complaint about either or both, but they should consider who carried out the act or practice that is being complained about.
- For example: using the facts of this case and assuming that Mr Carvil could provide evidence to support his position, Mr Carvil could have argued that Casey City Council (Council) interfered with IPP 4.1 by failing to take reasonable steps to protect his personal information from unauthorised access by the Mayor. Additionally, Mr Carvil could have argued that the Mayor interfered with IPP 1.1 and 2.1 by collecting and using his hardship application to influence him to sell his property.
Facts and decision
- Mr Carvil lived in a rural area which had, over the years, grown into residential. This caused the value of his property to increase and therefore his rates. Mr Carvil lodged an application for financial hardship with the Council.
- Subsequently, the Mayor of the Council called Mr Carvil and asked whether Mr Carvil would be interested in selling his property.
- Mr Carvil alleged that the Mayor inappropriately used his position with Council to learn about his financial hardship application and tried to use this information to encourage the him to sell his property.
- The Council sought, and VCAT granted, the complaint to be summarily dismissed because Mr Carvil had produced no evidence that his personal information had been used or disclosed.
- It appears (although the decision does not state this explicitly) that one plausible factor influencing this decision was that the Mayor may have used other information to initiate the conversation with Mr Carvil , including his personal relationship with Mr Carvil ( Mr Carvil was friends with the Mayor’s wife and daughters) and knowledge of development plans in the area.