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Why you won't get a legal "opinion" from Enquiries Karin Carter
11 October 2016

the law

Callers to our Enquiries service often start with “I need some legal advice”. If the caller means guidance on his or her Privacy Act rights or the obligations of an agency, then we can help. But if by “legal advice” he or she means a legal “opinion” about how the Privacy Act might apply, then this is something our Enquiries service can’t do.

Guidance on the Privacy Act

Distinguishing between guidance on the law and legal opinion might seem like hair-splitting, but it is an important difference. Take access, for example. Our Enquiries service can tell you that you have the right, under principle 6 of the Privacy Act, to ask for any personal information that an agency holds about you.

We can advise you how an agency must respond to your request, and that the law allows for information to be withheld in certain circumstances. We can discuss the circumstances for withholding information and tell you that you have the right to complain to us and have that agency’s decision reviewed.

What we can’t tell you is whether you have the right to see particular information, because the agency may have a legitimate reason to withhold it. The reasons to withhold depend on the specific circumstances of a case.

Legal opinion

To provide a legal opinion, our Office would need to gather all the relevant information. We might, for instance, need our investigators to obtain the information that has been withheld from you. We could then weigh it up against the Privacy Act’s withholding grounds.

Only then would we be able to give you and the agency a legal opinion on whether you should have access to the information or not.

Is it a breach of my privacy?

We are also often asked “has my privacy been breached?” What if, for instance, your employer has put a GPS device in the work car, and is collecting information about where you’ve been going outside work hours. Or what if personal information has been disclosed against your wishes?

Agencies must have legitimate reasons for collecting, storing, and disclosing information. They must advise people of certain things when they collect information, like what they are collecting, why they are collecting it, how they intend to use it, and if there are any possible consequences to you for not giving it.

Agencies must also take reasonable steps to ensure the information is accurate before they use it, and they must keep it safe. They can only use or disclose it in certain circumstances.

This is set out in the Privacy Act’s 12 information privacy principles. If you think an agency is not complying with the Act, and it is unable to resolve your concerns when you ask them about it, you can complain to us.

Complaints

In most cases, we will be able to tell you if your complaint is outside our jurisdiction. There are a few no-go areas.

For example, we are unlikely to be able to investigate if your ex-boyfriend is saying stupid - but not highly-offensive - things about you on Facebook. This is because personal or domestic affairs are outside our jurisdiction under section 56 of the Privacy Act. The exception is if the information could be considered highly offensive to an ordinary person.

We are also not able to investigate if the information you are concerned about is the subject of court proceedings. The courts in their judicial function are outside the Privacy Act.

If you believe an agency has breached your privacy, and that you have suffered harm as a result, you can lodge a complaint and our investigators will look into it.But until then, our Enquiries service can give you guidance, but not a legal opinion.

Advisory opinions for agencies

Note that we do have a separate advisory service for agencies. Our Office offers advisory opinions to help agencies understand how the Privacy Act might apply in a situation they are exploring or considering. The process is intended to promote understanding of the information privacy principles and give greater certainty to agencies in relation to the Act’s operation. You can find out more about our advisory opinions here.

Image credit: Creative Commons via smlp.co.uk

 

 

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