From February 2018, amendments to the privacy law will come into effect. The new legislation creates a positive obligation to conduct an assessment where an entity suspects, rather than believes, an eligible data breach has occurred.
The notification obligations, which will require an entity to notify affected individuals and the regulator, Office of the Australian Information Commissioner (OAIC), of any eligible data breach, will not arise where the data breach is only suspected. However, if during the course of an assessment, it becomes clear that there has been an eligible breach, then the entity needs to promptly comply with the notification requirements.
What is an ‘eligible data breach’?
A ‘data breach’ is any unauthorised access or disclosure of personal information your school holds, or where that information is lost and likely to give rise to unauthorised access or disclosure.
An ‘eligible’ data breach arises where a reasonable person would conclude that the breach is likely to result in serious harm to the person that the information relates to.
What does an assessment involve?
The OAIC has released a draft resource to assist relevant entities on their obligation to assess a suspected data breach. The OAIC makes clear that the obligation is not only to assess the relevant circumstances, but to have in place:
The key issue is that entities must take reasonable steps to ensure a “reasonable and expeditious” assessment is completed within 30 days of becoming aware of the suspected breach. As the Privacy Act does not set out how entities should assess a suspected data breach, your school will need to have a team ready and a response plan in place.
The OAIC recommends a risk based approach to the assessment and that the following 3 stage process could be appropriate:
The OAIC recommends that the process be fully documented.
A key takeaway from this resource is to have a nominated person responsible for undertaking and reporting on the assessment process. The person will need to be provided with the resources to do this task, within the timeframe, and in a way that will withstand scrutiny by the regulator.
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