Direction on the Incidental Disclosure and the Transfer of Personal Information belonging to Third Parties to the (SA) Commission of Inquiry into Children in State Care
This Direction applied to the Department of Community Services and the South Australian Commission of Inquiry into Children in State Care. It operated from 15 November 2006 to 31 December 2006. A related Direction has been made under s.62 of the HRIP Act.
Pursuant to s. 41(1) of the Privacy and Personal Information Protection Act 1998for the Department of Community Services
Interpretation
Except as provided below, words and phrases defined in the Privacy and Personal Information Protection Act 1998 which are used in this Direction have the same meanings as in the Act.
In this Direction:
“Act” means the Privacy and Personal Information Protection Act 1998
“Commission” means the South Australian Commission of Inquiry into Children in State Care
“Commissioner” means the Commissioner conducting the Commission
“Department” means the Department of Community Services
Coverage
This Direction covers the Department of Community Services.
Background
The Direction aims to permit the New South Wales Department of Community Services to disclose incidentally to the South Australian Commission of Inquiry into Children in State Care personal information about third parties, which appears on New South Wales Department of Community Services files. The files in question relate to individuals who, as children, were in State care in South Australia and New South Wales and whose cases are the subject of inquiry by the Commission. The incidental disclosure of the third parties' information will occur, because it is not possible or practical to obtain the consent of those third parties to the disclosure of their personal information and because removing their personal information from all files would be onerous for the Department. The disclosures permitted by this Direction would otherwise be contrary to section 18 of the Act.
It should be noted that the Direction does not apply to the personal information of the subjects of the Department’s files, as their written consent to the disclosure of their personal information will be requested and obtained by the Commission prior to the Department disclosing their file. As a result, there will be no breach of the Act requiring an exemption in relation to their personal information.
In addition, the Direction will allow the Department of Community Services to disclose it South Australian Commissioner, who is outside New South Wales, the personal information of third parties, which is on the files in question. This would otherwise be a breach of section 19 (2) of the Act.
Finally, in order to ensure that the South Australian Commission of Inquiry into Children in State Care handles the personal information of these third parties substantially in accordance with New South Wales privacy legislation, the South Australian Commissioner will give an undertaking in writing to the Department that the information will not be held beyond the expiry of the Commissioner's Terms of Reference and that it will be held securely in accordance with Section 12 of the Act. The Commissioner will also undertake that the personal information of third parties will not be disclosed contrary to Section 18 or 19 of the Act or used contrary to Section 17 of the Act, except where expressly or impliedly authorised or permitted by the Act governing the Commission or otherwise required by law.
The Commissioner will also undertake not to disclose the contents of the documents on the files (including any personal information) to any person or agency, without the express permission in writing of DOCS. In granting such permission to the Commissioner, DOCS would be bound by New South Wales law, including New South Wales privacy law, as this exemption only relates to the dealings between DOCS and the South Australian Commissioner. It does not exempt DOCS from sections 17, 18 and 19 of the Act in relation to any other persons apart from the Commissioner.
Finally, for greater caution, it should be noted that the South Australian Commission is exempt from the provisions of the Freedom of Information Act (SA).
Public Interest
This direction has been made to allow the Department of Community Services to transfer to the South Australian Commission of Inquiry into Children in State Care the entire file of persons, who were in State care in New South Wales and South Australia and whose cases are the subject of the Commission's investigations. These files will contain, incidentally, the personal information of third parties. The Commission is required by its legislation to investigate and report on allegations of sexual abuse of children in State care in South Australia, allegations of criminal conduct resulting in the death of a child in State care, the adequacy of response to such allegations and other matters.
I am satisfied that the public interest in requiring the Department of Community Services to comply with ss. 18 and 19 of the Act is outweighed by the public interest in my making this direction.
Modification of and exemption from the Information Protection Principles
The following principles are modified only to the extent outlined below and are not modified so as to remove or limit any exemption in the principles, which might apply to the agency. They do not affect any other restriction imposed by any other Act or law upon the disclosure of the information concerned.
Sections 18 and 19
The Department may disclose to the Commission its entire Departmental file on any individual who was in the care of the State in New South Wales and whose case is being investigated by the Commission, including any personal information, where:
(a) the Commission requests in writing that the file be disclosed for the purpose of its investigations; and
(b) the individual concerned gives their consent.
2. Notwithstanding point 1 above, where the disclosure of such personal information would also result in the incidental release of the personal information of third parties, the Department may disclose that information to the Commission, where the Commissioner gives an undertaking in writing to the Department that such personal information will not:
(a) be held beyond the expiry of the Commissioner’s terms of reference, and is otherwise securely held in accordance with s. 12 of the Act;
(b) be disclosed contrary to ss. 18 or 19 of the Act or used contrary to s. 17 of the Act except where expressly or impliedly authorised or permitted by the Act governing the Commission, or otherwise required by law.
3. In addition to1 and 2 above, the Commissioner will undertake that the contents of the documents in the files provided to him by DOCS (including the personal information theron) will not be disclosed to any person or agency without the express permission in writing of DOCS
Duration
This direction has effect until the 31st December 2006 or the expiry of Commission's Terms of Reference, whichever is the later.
Signed by me on this 15th day of November 2006.
Philippa O’Dowd
Acting Privacy Commissioner
