A real estate agency has been asked to provide to the bailiff details of a former tenant which includes any forwarding address, mobile phone numbers, details of next of Kin, drivers licence, employer. The Bailiff has cited Schedule 2, Section 2.1(h)(v) of the Privacy Act.
The real estate agency’s privacy collection policy says (amongst other things) that
“If your personal information is disclosed to third parties, these third parties are strictly prohibited from using your personal information for any other purpose. We will only disclose to these third parties that information necessary for them to perform their services. Otherwise, we do not disclose personal information unless we are required to do so by law or regulation.” (our emphasis)
1. Is the real estate agency obliged to provide the information sought?
2. Should the real estate agency be requesting the information be subpoenaed before the information is provided?
3. Can you advise of any alternatives?
Thank you for the question.
The legislative provision relied upon by the bailiff only applies prior to 12 March 2014. The Australian Privacy Principles (APPs) apply from 12 March 2014. These are found in Schedule 1 to the Privacy Act. Part 3 of Schedule 1 is the correct legislative provision.
Under the new provisions, the APPs apply to any ‘APP entity’ which includes organisations – see s 6 for the definition of an ‘APP entity’ and s 6C as to what is an organisation. Note that there is a small business exemption. Unless your client has a turnover more than $3M (or comes within one of the exceptions to the exemption – eg: deals with people’s medical information), then the Privacy Act simply does not apply to them.
Even if it does, then Mentor’s view is that Part 6.2(b) of Schedule 1 allows your client to comply with the bailiff’s request, assuming that the bailiff is acting pursuant to a court order. Part 6.2 (b) requires disclosure where ‘the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order’.