Privacy and Information Sharing Presentation to South Australian Network of Drug and Alcohol Services Stephanie Otorepec, A/g Director, Regulation & Strategy Branch OAIC
The role of the OAIC The Office of the Australian Information Commissioner is: • the regulator of the Privacy Act 1988, and • the independent regulator of the privacy aspects of the Healthcare Identifiers service and the My Health Record system OAIC
OAIC’s regulatory and enforcement powers Regulatory powers Enforcement powers • • Accept an enforceable Conciliate or determine complaints undertaking (with compensation) • • Make a determination following a Receive / investigate data complaint or CII breaches • • Bring proceedings to enforce a Conduct assessments of entities determination • Investigate on own initiative • Apply to the court for an • injunction Create enforceable codes • • Apply to the court for a civil Require Privacy Impact penalty Assessments OAIC
The Australian Privacy Principles 13 principles that outline how personal information should be collected, used, disclosed and secured OAIC
The Australian Privacy Principles (APPs) 13 APPs in total • Principles apply to Government agencies and private sector organisations (referred to as ‘APP entities’) • Structured to reflect the information life cycle — planning, collection, use and disclosure, quality and security, access and correction • OAIC’s APP guidelines OAIC
The Australian Privacy Principles (APPs) • APP 1 – privacy policies • APP 8 – cross-border disclosure • APP 2 – anonymity • APP 9 – gov’t related identifiers • APP 3 – collection of information • APP 10 – quality of information • APP 4 – dealing with information • APP 11 – security of information • APP 5 – notification • APP 12 – access to information • APP 6 – use or disclosure • APP 13 – correction of • APP 7 – direct marketing information OAIC
As healthcare providers, you will be subject to Privacy Act All healthcare organisations are required to comply with Australian Privacy Principles due to the nature of the information they handle – which is categorised as ‘sensitive information’. Health information is any information about a person’s health or disability, and any other personal information collected while receiving a health service. Sensitive information is generally afforded a higher level of privacy protections under the APPs. OAIC
Relevant APPs in the context of health • Collection (including consent) (APP 3) • Notification (APP 5) • Use and disclosure (APP 6) • Security obligations (including destruction) (APP 11) • Access and correction (APPs 12 and 13) OAIC
Consent to collect health/sensitive information APP 3 – collection • Outlines when an APP entity can collect personal information – higher standards apply to collection of sensitive information • 2 main elements to meet when collecting sensitive information: 1. the information is reasonably necessary and directly related to the entity’s function, and 2. the individual (in which the information relates to) must consent to the collection. OAIC
Consent to provide data to the PHN The four key elements of consent are: • the individual is adequately informed before giving consent • the individual gives consent voluntarily • the consent is current and specific, and • the individual has the capacity to understand and communicate their consent . ! IMPORTANT that your client understands they're not under obligation to provide information – consent must be freely given OAIC
When is consent voluntary? Factors relevant to deciding whether consent is voluntary include: • the alternatives open to the individual, if they choose not to consent • the seriousness of any consequences if an individual refuses to consent • any adverse consequences for family members or associates of the individual if the individual refuses to consent. OAIC
Notification APP 1 – privacy policies • states that organisations must have a clearly expressed and up to date privacy policy about the management of personal information) APP 5 – notification • APP entities to take reasonable steps either to notify the individual of certain matters or to ensure the individual is aware of those matters OAIC
Matters that you must notify about under APP 5 • The matters include : the APP entity’s identity and contact details; the fact and circumstances of collection; whether the collection is required or authorised by law; the purposes of collection; the consequences if personal information is not collected; the entity’s usual disclosures of personal information of the kind collected by the entity; information about the entity’s APP Privacy Policy; whether the entity is likely to disclose personal information to overseas recipients, and if practicable, the countries where they are located. OAIC
Use and disclosure of information collected – APP 6 Sensitive information can generally only be used for the same purpose it was collected for, unless the person consents or an exception applies. Information can only be used for a secondary purpose, where it is directly related to the original purpose. OAIC
Keeping information secure, and destruction obligations APP 11 • APP 11 provides that an APP entity must take reasonable steps to protect personal information it holds from misuse, interference and loss, as well as unauthorised access, modification or disclosure. APP 11 only applies to personal information that an APP entity holds. An entity holds personal information ‘if the entity has possession or control of a record that contains the personal information’. • There are also destruction obligations OAIC
Access for your clients APP 12 • APP 12 requires an APP entity that holds personal information about an individual to give the individual access to that information on request, allowing a client to check and validate any data held about them OAIC
Correction APP 13 • APP 13 requires an APP entity to take reasonable steps to correct personal information to ensure that, having regard to the purpose for which it is held, it is accurate, up-to-date, complete, relevant and not misleading OAIC
What could happen if I breach the APPs? • Under the Privacy Act, it is considered an ‘interference with privacy’ • OAIC’s complaint -handling abilities OAIC
The Notifiable Data Breaches scheme OAIC
The Notifiable Data Breaches scheme • Commenced 22 February 2018. • Visit www.oaic.gov.au/ndb for the OAIC’s guidance on the scheme’s requirements. • Part IIIC of the Privacy Act 1988 — the scheme applies to businesses and government agencies with personal information security obligations. • These entities must notify individuals affected by an ‘eligible data breach ’, which is a breach that is likely to result in serious harm . The OAIC must also be notified. OAIC
Identifying an eligible data breach • An eligible data breach occurs when three criteria are met: 1. There is a data breach – being unauthorised access to, or unauthorised disclosure of personal information, or a loss of personal information, that an entity holds 2. This is likely to result in serious harm to one or more individuals, and 3. The entity has not been able to prevent the likely risk of serious harm with remedial action. OAIC
What is the harm threshold? • ‘Serious harm’ can be psychological, emotional, physical, reputational, or other forms of harm • Understanding whether serious harm is likely or not requires an evaluation of the context of the data breach. OAIC
If you suspect a data breach which may meet the threshold of ‘likely to result in serious harm’, you must conduct an assessment • Generally, there is a maximum of 30 days to conduct this assessment. This begins from when you become aware of a potential breach. • It is not expected that every data breach will require an assessment that takes 30 days to complete before notification occurs. You must notify as soon as practicable when you believe an eligible data breach has occurred. • You can divide an assessment into three stages: (1) Initiate; (2) Investigate; (3) Evaluate. OAIC
Notifying affected individuals – choose what is appropriate and practicable There are three options for notification: 1. Notify everyone 2. Notify only people who are at likely risk of serious harm. 3. Publish your notification, and publicise it with the aim of bringing it to the attention of all individuals at likely risk of serious harm. OAIC
Notifying affected individuals Your notification must include: • The identity and contact details of you agency/organisation • A description of the eligible data breach • The kind or kinds of information involved in the eligible data breach • What steps your agency/organisation recommends that individuals take in response to the eligible data breach. OAIC
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