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Thursday, March 01, 2012

NSW privacy exemptions just keep rolling along

Three years ago this post included some observations about the opaque nature of decisions by the NSW Privacy Commissioner to issue Public Interest Directions under section 41 of the NSW privacy act that in effect exempt an agency from compliance with some or all of the privacy principles that otherwise apply. And questioned why such exemptions were still necessary years after the act commenced in July 2000. The practice of extending the twenty directions further and not explaining the reasoning for the conclusion that the public interest is best served by the exemptions has continued since, as outlined yesterday in the commissioner's latest newsletter.

The newsletter contains the welcome news that this may not go on forever:
In October 2011 the Acting Privacy Commissioner, John McAteer invited agencies to consider whether they needed to continue to rely on these long-standing Public Interest Directions and whether they should amend their own legislation permit the particular dealing with personal information. Mr McAteer advised that for the time being, the long standing Public Interest Directions would be renewed until 31 December 2013 to give agencies and the government time to consider this matter. In coming Privacy Commissioner, Elizabeth Coombs would now like to thank agencies for their responses on this matter and she takes this opportunity to advise agencies that she will be raising issues associated with the long standing Public Interest Directions.
The stand out in the list is the Direction Relating to Information Transfers between NSW Public Sector Agencies, now extended until the end of 2013, which exempts from all the privacy principles a number of government activities including:
exchanges of personal information which are reasonably necessary for the performance of agreements (whether formal or informal) between agencies, and which agreements operated in the 12 month period prior to 1 July 2000 and have continued to operate since 1 July 2000 under the directions referred to in Paragraph 4 of this Direction.

In February 2009 I suggested it was highly questionable to just keep on exempting practices including "informal" ones simply because they were in place before 2000:
Maybe there are public interest arguments to support this, but the Commissioner doesn't provide them. And what agreements exist between government agencies to share information about us that need to continue in place 9 years after a law was passed by Parliament that imposed new standards and requirements regarding the handling of personal information? Well the Commissioner doesn't publish a list, and neither did his predecessors who like him were satisfied that the public interest required continuation of old pre-privacy law arrangements.

Now make that 12 years. Perhaps they're for the chop in 2014?

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