Victorian Government data dump and privacy breaches

September 6, 2018 |

There is controversy surrounding the Victorian Government’s tabling of 80,000 documents relating to the actions of the now Opposition Leader, Matthew Guy, when he was Planning Minister.  The underlying motive for the release seems to be more about politics than law which is of little interest to this blog.  What is interesting is that in tabling these documents there is a likelihood that it disclosed personal information relating to individuals, including health information. The nature of the personal information included the name of a lawyer, her mental health, her financial and familial details .  Initially published on line they have now been removed. That of course does not mean that personal information was not downloaded, copied or reproduced elsewhere during the time in which it was on line. And it appears that the rash action has resulted in significant scrambling by the Government in terms of apologies and the like.  That of course only goes so far, as in nowhere, in terms of liability. It claimed that the privacy breach was inadvertent.  That will cut very little mustard if put under forensic scrutiny in a court.  The tabling of a document in Parliament is as advertent as one can get.

That may be a breach of the Privacy and Data Protection Act 2014.  It may also give rise to common law and equitable claims. In all of this is the complicating factor of the Government relying on Parliamentary Privilege against suit for actions of those who did the tabling. But the various agencies collected, used and held the personal information contained in those documents.  Privilege has its limits.  One of the key issues in taking action in the privacy sphere is what causes of action, which dictates the venue.  Unauthorised release of personal information collected by agencies or organisations pursuant to contracts with agencies are covered by Privacy and Data Protection Act.  Complaints must be made to the Information Commissioner who either investigates or doesn’t and usually tries to conciliate.  And in my experience there is a reasonable chance of a successful resolution.  If there is no resolution the complainant can issue proceedings in the Victorian Civil and Administrative Tribunal.  Unfortunately the run of decisions in VCAT have been almost uniformly unsuccessful for applicants, taking a very narrow and highly administrative law approach which is not always consistent with privacy principles, and when not, the awards have been minimal.  It has been very disappointing observing the interpretation of the privacy legislation being narrowed and confined to the point where it may have very utility for many who have a legitimate complaint about the interference with their privacy.  In those circumstances when possible there may be more benefit in issuing in any of the Magistrates, County or Supreme Court relying on misuse of private information and, possibly, negligence.

The incident highlights the reality of document handling in the digital world.  Whereas previously the physical release and analysis of documents were previously a time intensive and complex process but one where retraction could take place uploading documents onto the internet is relatively straightforward and the retraction is much more difficult.

The ABC Report provides:

The Victorian Opposition says the State Government has exposed taxpayers to a potential lawsuit, after a woman’s private information was inadvertently released as part of a massive document dump.

Information about the woman’s medical history and financial details, and her daughter’s name and date of birth, were included in 80,000 pages of documents about Opposition Leader Matthew Guy’s dealings as planning minister that were tabled in Parliament and posted online this week.

The document dump detailed Mr Guy’s 2011 decision to rezone farming land at Ventnor on Phillip Island, which he then repealed amid public backlash. The documents revealed he ordered a $2.5-million settlement with a prospective developer to avoid political damage to his career.

Mr Guy told reporters this week that the Government settled to avoid a “lawyers’ picnic”, and that it was an appropriate decision to take.

Also reportedly among the documents is health information from a 2013 case against a La Trobe University emeritus scholar, who pleaded guilty to keeping human remains — some of them Aboriginal.

The Shadow Attorney General, John Pesutto, said the release of private information was “outrageous”.

“It’s exposed Victorian taxpayers to compensation claims on top of other compensation that’s paid out under this Government,” he said.

“We are very concerned now that because of the privacy breaches here, that individuals have been hurt and adversely affected by this may well have claims against the state of Victoria for what has been done to them.

“This is all because Daniel Andrews wanted to score some cheap political points and mount a distraction to the red shirts rorts,” Mr Pesutto said in a reference to Labor’s misuse of taxpayer-funded staff during the 2014 state election campaign, which is being investigated by Victoria Police’s fraud and extortion squad.

“All he’s achieved is something that’s massively backfired and, worse, hurt innocent victims along the way.

“I don’t think Daniel Andrews really cared whose private information was going to be included in this. They wanted as many documents so they could put them in boxes and roll them in all for show and what happened was that, along the way, innocent victims got caught up.”

‘God knows’ what other private data was released

The Deputy Premier, James Merlino, said he was made aware of the issue last night.

“The inclusion of these personal details was inadvertent and as soon as we were notified we asked for them to be removed from the public domain,” he said.

But Mr Pesutto said while the online link to the documents had been taken down, the documents themselves would remain available to the public until Parliament passed a motion.

The Treasurer, Tim Pallas, said he could not guarantee more people had not had their personal information revealed in the document dump.

“Well, there’s 80,000 pages, there’s a lot of material to work through,” he said.

“The Government’s applied as much due diligence to that material as it can.”

Mr Guy told reporters today the Opposition had so far only been through seven of the 32 boxes of documents released this week.

“God knows what other private and personal data on Victorians is now tabled for every Victorian to read in Hansard,” he said.

The Government’s decision to table the documents in the penultimate parliamentary session before the November state election is regarded as unconventional, as documents from previous governments are usually considered off limits.

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