A bank granted a mortgage loan to a client on the condition that she secure employment. The client found a job and asked her new employer to write to the bank confirming details of her employment. Shortly afterwards, the client had to leave the job because of health problems brought on by the working environment. The employer then spoke with the bank and, at its request, faxed a letter saying that the client was no longer a member of the employer's staff.

The client asked the bank for access to that letter. The bank refused the request under ss 29(1)(a) and (b) of the Privacy Act. The client complained to me that this refusal breached principle 6 and was an interference with her privacy.

For the reasons set out below, I formed the opinion that the bank did not have a proper basis to withhold the letter from the client and the bank subsequently released it.

Section 29(1)(a)

Section 29(1)(a) provides that an agency may refuse to disclose any information requested pursuant to principle 6 if:

"(a) The disclosure of the information would involve the unwarranted disclosure of the affairs of another individual ...;"

This requires agencies to balance the privacy interests of the person seeking the information against the interests of other people involved. Considerations such as the nature of the information, the purpose for which it was supplied, the purpose for which it was requested, and the extent of the requester's prior knowledge of the information might be relevant.

The requester already knew that the employer had advised the bank of her resignation as the employer had told her this. The letter would only provide detail of the information already known to the client. I considered that this would not involve an unwarranted disclosure of the employer's affairs.

Section 29(1)(b)

Section 29(1)(b) provides that an agency may refuse to disclose any information requested under principle 6 if:

"(b) The disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise -(i) Which was made to the person who supplied the information; and(ii) Which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence."

The decisive issue in this case was whether an express or implied promise was made to the employer and whether that promise helped induce the supply of information. I took into account the understanding and perception of the parties at the time of supply, the content and tone of the information, the context in which it was supplied and the wider community understanding of whether confidentiality would be accorded to information of this type.

The employer contacted the bank by telephone before sending a facsimile letter. The call was unsolicited which suggested that, at the time when the information was supplied, an express promise that it would be held in confidence had not been made.

The employer submitted that the information was provided to the bank on the understanding that it would be held on a confidential basis. I did not consider this helped induce the initial supply as the call was unsolicited and the letter did not contain any additional information. The employer did not raise the issue of confidentiality with the bank until later.

I considered that the fact the bank asked the employer to put her statement in writing was not, of itself, sufficient to create an implied promise of confidentiality in these circumstances.

The employer's letter did not indicate any reliance on confidentiality and stated that the information had been supplied to ensure that the employer would not be involved in a misrepresentation to the bank concerning the client's employment. I did not consider that releasing this kind of information would deter people from supplying information in similar circumstances.

For these reasons, I did not consider that the bank had a proper basis to withhold the letter from the client. The bank subsequently released it and I discontinued my investigation.

February 1998

Indexing terms: Access to personal information - Bank - Refusal - Information provided by third party - Unwarranted disclosure of third party's affairs - Privacy Act 1993, s 29(1)(a) - Information privacy principle 6.
Access to personal information - Bank - Refusal - Information provided by third party - Evaluative material - Privacy Act 1993, ss 29(1)(b) & 29(3) - Information privacy principle 6