The Privacy Commissioner has held that Aerocare Pty Ltd interfered with the privacy of an airline passenger, by asking him questions about his medical condition in the departure lounge of the Sunshine Coast airport, in front of his sighted guide and in close proximity to other passengers.

Background

The OAIC received a complaint by an individual against AeroCare about the collection and disclosure of his sensitive personal information. AeroCare provides passenger services for Virgin Australia at the Sunshine Coast airport.

The complainant is blind and uses a sighted guide and seeing eye dog. He had also undergone surgery for cancer and had to wear a medical device as part of his recovery. He had chosen not to disclose the details of his medical condition to his family, friends or his sighted guide, as he wanted to keep it private.

The complainant booked a flight with Virgin Australia, travelling from the Sunshine Coast to Melbourne. He took with him a letter from his treating hospital, which stated he had to wear the medical device and it should only be turned off for take-off and landing.

In the departure lounge of the Sunshine Coast airport, an AeroCare staff member asked the complainant a series of questions about his medical condition, including what the condition was, where his cancer was located and where his wound was located. These questions were asked in the presence of the complainant's sighted guide and in close proximity to a number of passengers.

The complainant lodged a complaint with the OAIC, alleging that AeroCare interfered with his privacy by:

  • collecting his personal medical information in an unreasonable and intrusive manner
  • failing to advise him of the reason for the collection of his personal information
  • disclosing his personal medical information to third parties in the departure lounge of the airport.

He said he felt humiliated and intimidated when being questioned and that he was 'extremely upset, distressed, depressed, shocked and amazed' by AeroCare's actions.

AeroCare's response

AeroCare did not agree that it had interfered with the complainant's privacy. It claimed the letter from his hospital did not contain all of the necessary medical information and so it had to ask the complainant questions to determine whether it was safe for him to fly. It claimed it did not ask the complainant to return to the check-in counter to answer the questions because it wanted to minimise any imposition on him, given his medical condition and accompaniment by a sighted guide and seeing eye dog. It also argued there was no evidence other passengers actually heard the complainant's answers to its questions.

Privacy Commissioner's determination

The OAIC determined that AeroCare interfered with the complainant's privacy. In particular it found AeroCare breached:  

  • NPP 1.2 (the equivalent of APP 3 – collection of solicited information), by collecting the complainant's information in an unreasonably intrusive way
  • NPP 1.3 (the equivalent of APP 5 – notification of the collection of personal information), by failing to take reasonable steps to ensure the complainant was aware of its identity or the reason it was collecting the information. AeroCare could not assume the complainant understood the information was being collected to determine his fitness to fly, and Virgin Australia's Conditions of Carriage and Privacy Policy didn't satisfy the relevant requirements (they also advised that sensitive information would only be collected with consent)
  • NPP 4 (the equivalent of APP 11 – data security), by failing to take reasonable steps to protect the complainant's sensitive personal information from unauthorised disclosure.

The OAIC considered:  

  • it was not relevant whether other passengers actually heard the information (and, in any event, the complainant's sighted guide certainly heard it)
  • AeroCare should have offered the complainant a more private location in which to question him about his medical condition (e.g. away from the seated area of the departure lounge)
  • AeroCare's actions caused the complainant significant distress and humiliation.

To redress the matter, AeroCare was required to:  

  • apologise in writing to the complainant and pay him $8500 in compensation for the injured feelings, humiliation and distress he suffered
  • review its training of staff in the handling of sensitive information and advise the OAIC of the results of that review within six months of the OAIC's determination.

Key message

Businesses that collect personal information from individuals in public places need to make sure their staff are aware of the need to be discreet.  As the Privacy Commissioner, Tim Pilgrim, said in relation to this case:

'This determination is particularly relevant to organisations that need to collect or discuss information about people in public places like medical practices, banks and Government service centres. Organisations that operate in this environment need to ensure that they take reasonable steps to protect the privacy of their customers. What is reasonable will depend on the particular circumstances, but it is an issue that needs to be actively considered and managed. As we saw in this case it can cause the individual considerable distress and embarrassment and may be a breach of the Privacy Act.'1