Privacy Case Note 04-2017 (Amendment of personal information)

Case note number: 04-17

Privacy principles: Information Privacy Principles 7, 8 and 11.

The complaint

The complainant identifies as a transgender person. In early 2016, they registered with the respondent agency using their formal birth name. The complainant claimed that they were not able to indicate a preferred name on the registration form, but subsequent discussions with the agency resulted in an agreement for the complainant to use their preferred name and that their  birth name and transgender status would be confidential.

Later that year, the complainant received an amended birth certificate and used the agency’s online portal to informally request an amendment of the name under which they were registered, which the agency proceeded to do.

The following week, the complainant was due to attend a meeting with the agency at which other agency registrants would also attend. In the course of recording attendance for this meeting, the agency disclosed the complainant’s birth name to the attendees and in doing so, also disclosed the complainant’s transgender status.

The complainant considered that the agency had breached confidentiality and accordingly, their privacy.

The complainant brought their complaint to the respondent agency. The agency apologised for the inadvertent event and returned the complainant’s registration fees. Dissatisfied with this outcome, the complainant lodged a privacy complaint with the Office of the Information Commissioner.

Our decision

We decided that the complainant had an arguable case for breaches of IPP 7, IPP 8 and IPP 11.

The agency explained that it printed the attendance sheet before the complainant asked for the name change and that a change to an individual’s registration details would not necessarily filter through to a ‘secondary’ document - such as attendance sheets.

The agency also contended that if an individual changes their name, but does not identify the records that they want amended, the IP Act does not require that the agency proactively search for and consider whether to amend all the documents it holds. Rather, the IP Act addresses this issue of secondary documents by giving individuals the right to make an amendment application.

We were not persuaded by the agency’s argument on this issue. This was a reasonably significant change to the complainant’s registration details – a change of name and gender. The attendance sheet is a relatively informal document that could be easily amended and re-printed.  Furthermore, we considered that requiring the complainant to make a formal access amendment application in order to achieve the outcome of amending an attendance sheet meant that the agency did not discharge its obligation under IPPs 7 and 8 to ‘take all reasonable steps’.

Mediation process

The remedy sought by the complainant to settle the complaint included financial compensation for economic and non-economic damages. The agency’s position was that it would not offer to pay any further monies in light of its earlier refund of the registration fees. However, the exchange of positions between the two parties during the mediation process helped the agency to better understand the complainant’s concerns and why they had made the complaint. In a counter settlement offer, the agency proposed that it would:

  • amend its processes to ensure what happened with the complainant would not happen to anyone else; and
  • actively amend all its records to accord with the complainant’s name and gender.

In addition, agency would:

  • provide the complainant with an apology that acknowledges and expresses sympathy for the hurt suffered by them; and
  • engage with a LGBTIQ+ (lesbian, gay, bisexual, transgender, intersex and queer) advocacy group to develop improved systems and training.

We were also able to advise the complainant that the agency had approached us during the mediation process for privacy advice on dealing with name changes associated with transgender and gender re-assignment and that our advice would be incorporated into the agency’s new systems and processes.

The complaint was successfully mediated on these terms.

This case note highlights that the ‘reasonable steps’ test is an objective test. What steps are reasonable when an individual makes an informal request to amend their personal information   depends on many factors, including the personal information in question and the adverse consequences for an individual should inaccurate information be used.