C51/2002 RELEASE OF PERSONAL INFORMATION RELATING TO EULOGIES AND OTHER MATTERS
DATE OF ISSUE: 12 NOVEMBER 2002
RELEASE OF PERSONAL INFORMATION RELATING TO EULOGIES AND OTHER MATTERS
Purpose |
The purpose of this Departmental Instruction is to:
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Background |
The Strategic Review Section (SRS) of the Strategic Support Branch in National Office recently concluded a review of FOI arrangements in DVA. Recommendation 11 of the SRS report was that DVA promote consistent practices by providing guidance to State-based FOI personnel on what activities should, or should not, be treated as a request for access to information under the Freedom of Information Act 1982 (the FOI Act) and subsequently recorded in the FOI database. The recommendation went on to say “...In particular, there is a need to clarify whether information requested for eulogies ought to be dealt with under the provisions of the FOI Act.” The issues raised by the SRS review were discussed with some State FOI sections, and by all State FOI officers at the DVA National FOI Conference held in Canberra in September 2002. |
Identification of Issues |
It is clear from comments of State FOI officers and from discussions at the DVA National FOI Conference that there are two separate issues raised by SRS Recommendation 11:
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Consideration of Issues |
(a)Treatment of Eulogies and other requests for personal information as FOI requests
Discussion at the Conference established that there are differences between State Offices as to the types of request which should be dealt with under the FOI Act. Some State Offices treat many requests for eulogies and some other types of requests (for example, nursing home information requests) as FOI requests, even when the requests do not comply with the legal requirements set out in subsection 15(2) of the FOI Act. For example, the request may not be in writing, the issue of payment or waiver of a fee is not always dealt with, and often the response does not involve the provision of documents. It is appreciated that the intention is to balance the need for urgency with a desire to obtain the protection offered by the FOI Act, and that subsequent action is often taken to bring such requests within FOI (for example, by seeking the submission of FOI request forms after the matter has been resolved). Nevertheless, the practice is a breach of the FOI Act and the correct procedure must be followed. |
Correct Procedure |
Where there may be difficulties in releasing information in relation to eulogies and similar requests, the matter must be processed under, and comply with the requirements of sub-section 15(2) of the FOI Act as follows - it must:
Examples of such difficulties are when there is a question of identity of the applicant, or of relationship with the person concerned, or where personal information of third parties are also on file.
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Consideration of Issues |
(b)Ensuring all DVA officers are aware of obligations regarding personal information and that such obligations are uniformly met.
The FOI Manual presently being finalised and to be circulated to all staff will note the obligations of staff. A Privacy Manual is also under preparation – this manual will address the relationship between the disclosure of personal information under the FOI Act and the requirements under the Privacy Act that regulate the lawful disclosure of personal information. |
Correct Procedure |
Prior to the circulation of the FOI and Privacy Manuals and/or relevant training, officers should take particular care to comply with the requirements of both the FOI Act and Privacy Act. Officers should familiarise themselves with the provisions of section 41 of the FOI Act and the Information Privacy Principles under section 14 of the Privacy Act. For specific guidance for releasing personal information under the Privacy Act, officers should refer to DI B54/91 as amended by DI B04/92. |
Contact |
Contact officers for this Departmental Instruction are Derek Emerson-Elliott (telephone (02) 6289 6577) and Norman Kalagayan (telephone: (02) 6289 6208). |
WR MAXWELL
Division Head
Compensation & Support Division
12 November 2002
DEPARTMENTAL INSTRUCTION NO.: B54/91
DATE OF ISSUE: 25 November 1991
DISCLOSURE OF PERSONAL INFORMATION RELATING TO A DECEASED PERSON AND HIS OR HER DEPENDANT
Purpose
The purpose of this Instruction is to specify guidelines for disclosure of personal information relating to a deceased person and his or her dependant.
Background
2. In the past the Department has co-operated closely with ex-service organisations upon the death of a veteran in providing information concerning the deceased veteran and his or her dependants. This practice has assisted the ex-service organisations and associations to offer their services to the widows and other dependants and has worked to the benefit of all concerned.
3. Of particular significance is the traditional practice of the Department to notify Legacy, the War Widows' Guild, the RSL and other organisations of the death of veteran.
Privacy Act 1988
4. However, with the commencement of the Privacy Act 1988 on 1 January 1989, any disclosure of personal information held by the Department is subject to the provisions of the Privacy Act which imposes certain limitations on the disclosure of personal information. The Act allows the disclosure of personal information to private individuals or organisations where the individual concerned has consented to the disclosure or where the disclosure is made under any of the other exceptions specified in the Act.
5. Consequently, personal information concerning the widows or other dependants of a deceased veteran cannot be disclosed to an ex-service organisation without the consent of that dependant. Such personal information extends to any information which might identify the dependant, e.g. name and address.
6. The Privacy Act, however, does not apply to a deceased person. The Act applies to an "individual" who is defined as "a natural person". The Privacy Commissioner has advised that a deceased person is not a natural person within the meaning of the Privacy Act.
7. This means that personal information which the Act protects from an unauthorised disclosure, is only concerned with a living person.
Disclosure of Personal Information
8. Accordingly, a disclosure of personal information relating to a deceased person is not a breach of the Privacy Act. However, such a disclosure ought to be made with due care and sensitivity. In this regard the Department may disclose personal information relating to a deceased person provided the information:
(a)does not identify the existence of and/or any other information about a dependant of the deceased person; and
(b)is not that which the Department has traditionally refused to disclose on the grounds of sensitivity for the veteran's personal reputation such as details of his or her psychiatric and other medical conditions.
9. The effect of the above conditions is that the Department may provide to ex-service organisations the following details of a deceased person:
(a) DVA File No.;
(b) Full name;
(c) Address;
(d) Service details (as on the Client Data Base) where applicable; and
(e) Date of Death.
10. Should an ex-service organisation require further information relating to a deceased person, the Departmental officer concerned shall seek an explanation from the organisation as to why the additional information is required. The officer should disclose that information if it is reasonably required by the ex-service organisation to provide support and assistance to a dependant of the deceased and the information falls within the parameters of sub-paragraphs 8(a) and 8(b). Such disclosures should only be made by Departmental officers authorised under the Freedom of Information Act.
11. Any request for release of documents held by the Department should only be considered under the provisions of the Freedom of Information Act.
Consent held by Ex-service Organisations
12. Where an organisation has the consent of a deceased veteran or of a dependant of a deceased veteran to obtain personal information relating to the veteran or the dependant respectively, the information may be disclosed to the organisation. The consent must specify the information which can be disclosed.
13. In regard to a consent held by an ex-service organisation, the following is the Department's position:
(a)the death of a veteran does not negate any consent given by the veteran;
(b)where an ex-service organisation seeks personal information relating to a deceased veteran and has the written consent of the veteran, or where an ex-service organisation seeks personal information relating to a dependant of a deceased veteran and has the written consent of the dependant, the Departmental officer shall require from the ex-service organisation evidence of the consent before the officer may disclose the information to the organisation;
(c)The evidence of the relevant consent under (b) above may be obtained by requesting over the telephone such details as the date of the consent and the nature of the information specified in the consent. Where an officer is given such details, the officer shall make a file note to that effect. The consent may continue to be held by the ex-service organisation and therefore need not be provided to the Department. In the event of a complaint to the Privacy Commissioner, the Department shall obtain the relevant consent from the organisation concerned; and
(d)where an ex-service organisation seeks personal information relating to a dependant of a deceased veteran and claims to have the oral consent of the dependant, the Departmental officer shall verify the oral consent by contacting the dependant by phone or in writing. If the contact was by phone then as evidence of this contact, the Departmental officer shall make a file note. When evidence of the oral consent is established the Department may disclose the information to the ex-service organisation.
Consent held by other Third Parties
14. Where a third party, other than an ex-service organisation, seeks personal information relating to a deceased veteran, or where a third party, other than an ex-service organisation, seeks personal information relating to a dependant of a deceased veteran, the Departmental officer shall sight the relevant consent before the information may be disclosed to the third party. In this respect the third party may be requested to fax the consent.
Other Guidelines or Instructions
15. Where there is an inconsistency between this Instruction and any other existing guidelines or instructions issued by the Department (e.g. DVA General Disclosure Policy), this Instruction shall prevail over the other and the relevant guidelines or instructions shall become inoperative to the extent to which the inconsistency exists between the two documents.
16. The General Disclosure Policy document is in the process of being revised by the Corporate Services Program.
Review of this Instruction
17. This Instruction will be reviewed early next year in line with the implementation of the Death (Information) Processing System. This system is currently being developed and is due for implementation in March 1992.
Enquiries
18. If there are any enquiries about this Instruction, please contact Warwick Moloney on (06) 2896355 or Mushtaq Butt on (06) 2896342.
Peter Hawker
National Program Director
Benefits Program
DEPARTMENTAL INSTRUCTION NO.: B04/92
DATE OF ISSUE: 14 January 1992
DISCLOSURE OF PERSONAL INFORMATION RELATING
TO A DECEASED PERSON AND HIS OR HER DEPENDANT
Following representations from Legacy and the RSL late last month concerning the limitations imposed by D.I. B54/91 on the disclosure of personal information relating to a deceased person and his or her dependant, the D.I. was reviewed and a further approach was made to the Privacy Commissioner about this matter.
2.In line with the Privacy Commissioner's advice paragraph 9 of the D.I. has been amended to read as follows:
"The effect of the above conditions is that the Department may provide to ex-service organisations the following details of a deceased person:
(a)DVA File No.;
(b)Full name;
(c)Address;
(d)Service details (as on the Client Data Base) where applicable;
(e)Date of Death; and
(f)The deceased has/has not a dependant (delete which is not applicable)."
3.It should be noted that in providing the information contained in sub-paragraph (f) above the objective is simply to indicate the existence or non-existence of a dependant of the deceased concerned. Therefore, the identity of the dependant must not be apparent from the information provided to the ex-service organisations.
Peter Hawker
National Program Director
Benefits Program
January 1992
Source URL: https://clik.dva.gov.au/compensation-and-support-reference-library/departmental-instructions/2002/c512002-release-personal-information-relating-eulogies-and-other-matters