1 Feb 2006, 09:00

A woman requested access to personal information that a union held about her. The union had acquired the information from the woman's employer, in the course of dealing with a dispute between the employer and another employee. The union did not hold any other personal information about the woman.

The union initially refused the woman's request, giving two reasons for doing so under the Privacy Act 1993. However, approximately four months later it transferred the request to the employer so that the employer could process the request.

I investigated whether the union could rely on section 39 of the Privacy Act in order to transfer the request.

Section 39

Section 39 provides that an agency must transfer an access request where the information to which the request relates:

(i) is not held by the agency but is believed by the person dealing with the request to be held by another agency; or

(ii) is believed by the person dealing with the request to be more closely connected with the functions or activities of another agency.

Section 39 also provides that the agency must make the transfer promptly, and in any case not later than 10 working days after the day on which the request is received, and inform the requester accordingly.

In the circumstances I was satisfied that the union was required by section 39 to transfer the request, even though the transfer occurred much later than 10 working days after receiving the request. The information requested was more closely connected with the functions and activities of the employer. The employer was the original source of the information. Also, the employer alone was in a position to take any necessary steps to investigate and solve the possible employment issues arising out of receiving information in response to the request.

The union also stressed the need to maintain the confidentiality of information provided to it by its members and by agencies during disputes. I accepted that, where section 39 is applicable, it provides an appropriate mechanism for maintaining confidentiality.

In discussions, the union acknowledged its failure to meet the time frame set out in section 39. It altered its procedures to ensure that any future transfers would be made promptly. It appreciated the reasons behind the section 39 time frame.

A breach of the section 39 time frame alone does not create an “interference with privacy”, as that term is defined in section 66 of the Privacy Act. I therefore notified the complainant that the union was required to transfer her request and that the late transfer had not resulted in an interference with her privacy. I then discontinued my investigation of the complaint.

September 2006

Indexing terms: Access to personal information – Union – Request transferred – Reasons for transfer correct – Delay in transfer – Privacy Act 1993, section 39