Access To Personal Information Collected By Insurer Investigating a Claim By Jenny Willcocks | March 2006
PRIVACY CASE NOTE 3 OF 2006 – C v INSURANCE COMPANY [2006] PRIVCMRA 3 The Privacy Commissioner has released the above Case Note, which is one of four finalised complaints the Commissioner regards as of interest to the general public. The Commissioner only publishes Case Notes which involve a new interpretation of the Privacy Act (the Act), illustrate systemic issues, or the application of Privacy Law to a particular industry. The identities of the parties remain private. The case is of interest not only to insurers but also to trustees of superannuation funds who investigate death and total and permanent disablement claims. It deals with exceptions to an organisation’s general obligation to give access to personal information where this would: • •
result in an unreasonable impact on the privacy of others; or reveal evaluation information concerning commercially sensitive decision-making processes.
The Facts C v Insurance Company is a case where the Complainant alleged that he had been denied access to personal information collected about him by the insurance company (the Insurer) during the course of the investigation of his claim. The Complainant made an insurance claim that had been investigated and payment made. The Complainant subsequently requested access to his personal information collected during the course of the investigation under National Privacy Principle 6 (NPP 6). NPP 6 gives a general right of access to individuals to obtain their personal information from an organisation, subject to the following exceptions: • •
An organisation may deny access when it would have an unreasonable impact on the privacy of other individuals (NPP 6.1(c)). An organisation may deny access when it would reveal evaluative information generated within the organisation relating to a commercially sensitive decision-making process (NPP 6.2).
Although the Insurer released a number of documents, it refused to provide access to others on the basis that their release would compromise the privacy of other individuals and would also reveal commercially sensitive information.
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Issues The basis of the complaint was whether the documents in question contained information that: • •
would have an unreasonable impact on the privacy of other individuals; and was of a commercially sensitive nature.
The Commissioner examined the documents relating to the insurer’s investigation of the insurance claim, which had been with held from the Complainant.
Commissioner’s Recommendations NPP 6.1(C): IMPACT ON PRIVACY OF OTHERS Witness Statements – Access Denied The Commissioner determined that providing access to some of the documents in issue would have an unreasonable impact on the privacy of other individuals. These were documents that contained personal information about witnesses to the events that lead to the insurance claim. Under NPP 6.1(c) the Commissioner may consider a number of factors to determine whether providing access to documents containing personal information of third parties would result in an unreasonable impact on the privacy of those other individuals. These factors include: • • • • •
the other person's expectation; whether they would expect their personal information to be disclosed to a third party, including whether any assurance of confidentiality was provided; the extent of the impact on the other person's privacy; any public interest reasons for providing access to the information that would outweigh any expectation of confidentiality; and whether masking the identifying details of the third party would sufficiently protect their privacy.
It was the Commissioner’s view that these witnesses would not have expected their identity to be revealed, and masking their names would not prevent them from being identified because their identity could be discerned from the content of the statement. Therefore the Commissioner decided that the organisation could rely on the exception in NPP 6.1(c) to deny access to these documents. Other documents – Access granted subject to masking However the Commissioner found that access could be given to other documents even though they identified third parties because the identity of the third party could be protected by masking the identifying information. The Commissioner recommended that the Insurer mask the relevant parts of the documents before they were released to the Complainant.
NPP 6.2: COMMERCIALLY SENSITIVE INFORMATION Information considered important in assessing claim – Access Denied
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The Commissioner took the view that some documents if released to the Complainant would reveal commercially sensitive information. These were the documents that described the type of information the Insurer considered important in assessing insurance claims during an investigation. The exception in NPP 6.2 could be relied on to deny access to these documents.
OTHER DOCUMENTS – ACCESS GRANTED SUBJECT TO MASKING However, in respect to other documents containing commercially sensitive information, the Commissioner recommended that access be given to the majority of the document with the commercially sensitive components masked. The Insurer adopted the Commissioner’s recommendations and consequently the Commissioner decided not to open a formal investigation into the matter.
Conclusion The Case Note demonstrates the Commissioner’s willingness to strike a balance between the right of an individual to have access to their personal information with the rights of others to have their privacy protected, and the rights of organisations to protect commercially sensitive information. Unfortunately Case Notes are brief and lack detail. In the case of witness statements, the expectation of the person giving the statement will be critical and masking only an effective solution if it can prevent the witnesses identity from being disclosed. Documents that reveal what information an Insurer will consider important in assessing a claim goes to the heart of the claims assessment process. Whether the NPP 6.2 exception can be relied on will obviously depend on the nature and content of the documents in question, and this can only be assessed on a case by case basis. The Case Note does not provide any detail on what the documents subject to the NPP 6.2 exception consisted of. However, the Commissioner’s view that this information can be classified as commercially sensitive and within the exception in NPP 6.2, offers some comfort to insurers, and superannuation trustees, that their claims process will not be compromised where documents describing the type of information they consider important to assessing a claim, comes within the exception.
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For more information please contact: Jenny Willcocks Partner T: 03 8600 5001 jenny.willcocks@turkslegal.com.au
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