1 Feb 2006, 09:00

Not long before she was due to graduate, a student was told that she had not been awarded a passing grade for the final year of the qualification. This meant that she would not be able to graduate with her class.

At a rehearsal for the graduation ceremony, the student's name was read out. The reader then asked "are we going to?" to which another staff member replied "no"

The student considered that this exchange disclosed the fact that she was not going to graduate and therefore that she had failed the year. She believed that about thirty students heard the exchange.

The day after the rehearsal, the student presented her work at a public exhibition along with other students in her class. She allowed her partner to place a notice alongside her exhibit stating that the work had received a fail grade. The notice invited public comments about that grade. There was also some additional publicity, for example on the internet.

I investigated this complaint under principle 11. Principle 11 provides that an agency that holds personal information must not disclose that information unless an exception applies.

The personal information at issue was that the student was not going to be graduating at the ceremony and that she had not passed the final year of her qualification. I had to consider:

• whether there was a disclosure of that personal information;
• if there was a disclosure, whether any exceptions to principle 11 applied; and
• if there was a breach of principle 11, whether adverse consequences resulted from that breach, so as to amount to an interference with privacy.

Disclosure

To constitute a "disclosure" under the Privacy Act, the agency must have revealed information that was not previously known to the listeners. The student had told some of her fellow students that she had failed. However, I considered, on the balance of probabilities, that other students at the rehearsal were not already aware of the failure. I was also satisfied that the comments at the rehearsal disclosed the fact that she had failed. The question "are we going to?" and the reply "no" were sufficient to indicate that the named student was not going to graduate because she had failed the year.

Applicable exceptions

As I was satisfied that there was a disclosure of personal information, I considered whether the exceptions under principles 11(a) or 11(d) applied.

The tertiary institution submitted that the disclosure was directly related to the purpose for which the information was obtained (principle 11(a)). It argued that the student's non-appearance at the graduation would have revealed the information in any case. However, it was my opinion that, although the information may ultimately have become public, it was not one of the purposes of obtaining information about results for members of staff to divulge those results to fellow students in that way.

The institution also submitted that because the complainant had informed some of her fellow students about her grade, she had effectively authorised the disclosure of this information to others (principle 11(d)). I did not accept that the institution had reasonable grounds to believe that the student authorised the wider disclosure of her grade simply because she had informed some students about it.

As a result, I concluded that there was a breach of principle 11.

Section 66 - Adverse Consequence

Section 66 provides that an action is an interference with a person's privacy if it breaches an information privacy principle and causes or may cause an adverse consequence.

The student claimed that she had suffered humiliation, loss of dignity, distress and shock as a result of the disclosure.

In assessing this, I considered that it was relevant that the complainant had decided to go public with information about her grade on the day following the disclosure. She disagreed with her grade and encouraged public discussion of whether the grade was deserved. I therefore considered that the humiliation, loss of dignity and distress suffered by the student was due more to the failure to pass her qualification than to the disclosure made at the graduation rehearsal. As a result, I found no interference with the student's privacy.

Disclosure of personal information - Tertiary Institution - Disclosure of student's failure to other students - Whether disclosure directly related to purpose - Whether disclosure authorised  - Adverse consequences did not flow from the disclosure - Privacy Act 1993, s66 - Information Privacy Principle 11(a), 11(d)