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).
IPP 1.3 – Organisation must provide a collection notice
- In this decision, VCAT held that there may not be any ‘reasonable steps’ an organisation can take to provide a collection notice where it has collected personal information but not taken any active steps to solicit that personal information.
- In our view, this application is erroneous. Whether reasonable steps exist is a question of fact and whilst whether an organisation has solicited collecting personal information can be one factor, it is not definitive. In this case, in our view, Council had access to Mr Little’s contact details, could therefore have easily provided Mr Little with a collection notice explaining how they would use the information he had provided.
Facts and decision
- Mr Little was employed as a Food Safety officer for the Post Deng Café (Café). Mr Little wrote a letter to Melbourne City Council (Council) asking them what to do because he had observed a cook at the Café smoking in the kitchen during trading hours, which was in contravention of the Food Act 1984 (Vic.) (Food Act).
- The proprietors of the Café were subsequently prosecuted by Council for contravention of the Food Act. Mr Little believed that the letter he had written was used as evidence in prosecuting the proprietors, which had not been his intention.
s 57 – Persons entitled to make a privacy complaint
Submissions
- Council contended that VCAT did not have jurisdiction to hear the complaint. They argued that the information Mr Little was complaining about, as contained within the letter was about the proprietors of the Café and not about himself. Submitting that s 25 of the IP Act (similar to s 57 of the PDP Act) sets out that only individuals in respect of personal information are able to make a complaint.
Decision
- VCAT rejected the Respondent’s argument. It held that Mr Little’s identity was apparent in the letter and therefore contained his personal information. Further, just because the letter contained personal information about other persons did not mean that Mr Little was excluded from making a privacy complaint.
IPP 1.3 – Organisation must provide a collection notice
Submissions
- Mr Little alleged that Council interfered with IPP 1.3 when it collected his personal information within the letter without making him aware that it would be used as evidence in prosecuting the proprietors of the Café.
Decision
- VCAT held that there was no interference with IPP 1.3 because, as the letter was unsolicited, there were no reasonable steps that the Respondent could have taken to make Mr Little aware of the purposes for which it collected the personal information and to whom it would usually disclose such information.
IPP 2.1 – Use or disclosure is for the primary purpose of collection
Submissions and decision
- Mr Little alleged that Council breached IPP 2.1 because it used and disclosed the personal information for the purpose of prosecuting the proprietors of the Café, whilst he was only seeking Council’s assistance to deal with the cook.
- Council contended, and VCAT agreed, that there was no interference with IPP 2.1 because it was used and disclosed for the primary purpose of collection – being the investigation and prosecution of potential breaches of the Food Act.
About this decision
Venue: VCAT
Date of decision: 30/10/2006
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