B54/1991 DISCLOSURE OF PERSONAL INFORMATION RELATINGTO A DECEASED PERSON AND HIS OR HER DEPENDANT

DATE OF ISSUE:  25 November 1991

DISCLOSURE OF PERSONAL INFORMATION RELATINGTO 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 personand 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