One of Australia’s largest tenancy databases breached a renter’s privacy by operating an additional service that tracked their movements over seven years, Australia’s information watchdog has found.
The complaint concerned Tenancy Information Centre Australasia’s (TICA) ‘virtual manager’ service, which allows property managers to opt in to receive notifications when the name of tenants they have logged with the service are searched in TICA’s main database as part of future rental property applications.
While formal tenancy databases – often called blacklists – are subject to strict privacy and information rules, including that listings must be removed after three years, the virtual manager service has operated outside of these guardrails for years, allowing property managers to keep tabs on tenants indefinitely.
TICA – a private company that collates renters’ data and provides it to real estate agencies for a fee – argued the virtual manager service is an “internal database” and therefore exempt from statutory requirements for rental blacklists.
But in a decision made in February, the Australian Information Commissioner found the virtual manager database was bound by the same restrictions as other official databases, stating:
“The [virtual manager] database appears to have been used to circumvent the legislative requirements in order to allow the respondent’s members to indefinitely conduct risk assessments of prospective tenants or to indefinitely locate individuals upon the cessation of a residential tenancies agreement.”
Tenants advocates have welcomed the Information Commissioner’s decision – which ordered information about the complainant to be removed from the database – but say there are still an unknown number of renters whose information may have been listed on virtual manager for longer than three years.
“Every other renter’s data that has been stored for more than three years is still on that database,” said Joel Dignam, the executive director of tenant advocacy group Better Renting.
“What we’re talking about here is quite different from the standard, three-year tenancy blacklist, it’s this extra function that TICA is in practice opening indefinitely … that allows agents to have this tattletale network that can span decades.”
How the ‘virtual manager’ service works
The controversial virtual manager service invites real estate agents who have signed up for membership to enter the details of tenants they wish to keep tabs on.
In the future, when a tenant applies for another property and the other real estate agent searches for their details in TICA’s main database, the original property manager receives a notification that includes the name and contact details of the agent who conducted the search.
Tenancy databases are designed to protect landlords from tenants who have a history of breaching their lease obligations. A handful of private companies, including TICA, operate them in Australia and they are widely used as part of rental application checks.
The rules on when a tenant can be listed on formal tenancy databases vary between states, but typically renters can only be listed at the conclusion of a lease, when they owe more rent than the total of the bond, have caused damage to the property that exceeds the bond, or if it’s been ordered by a court or tribunal.
Real estate agents are also required to inform tenants in writing if they plan to list them on a tenancy database, allowing them time to address the issue or appeal the decision. Similarly, if someone is rejected from a property because they are listed on a tenancy database, the leasing agent is bound to inform them of that fact.
Leo Patterson Ross, a spokesperson for the National Association of Tenants Organisations, said while laws around tenancy databases limit the information that can be held to instances where there have been relevant breaches of contract, TICA’s virtual manager service is “pretty much set up to avoid the rules … by inviting agents to talk about you without any transparency and without any accountability for what’s being said”.
“It does hold personal information and it does share that information around … but it’s actually what it facilitates, which is a non-transparent reference system, that is the bigger problem.”
When virtual manager launched in 2010 it was met with backlash from tenants’ advocates, who described it as “a gross invasion of privacy”. At the same time, a TICA spokesperson said its main purpose was to monitor the movement of tenants while they are still renting the property, so landlords could guard against “the dreaded midnight skip”.
In the 14 years since, little information has been published about how the secretive service – which is only available for an additional fee to TICA’s “gold members” – operates.
“There’s just something incredibly creepy and invasive about the fact that a property manager can put a little alert in the system, and seven years later [in this case] know that you’re trying to apply for a property and basically go and put a spanner in the works and make it so you can’t get a home,” Mr Dignam said.
According to the published determination of the Office of the Australian Information Commissioner (OAIC), the automatic email sent to agents explains that the service allows them to “virtually monitor tenants” who have “since been removed from the default database and still owe your office/landlord money; you have suspicions about leaving the rental property without notice (absconding); you were unable to default/blacklist but still owes money”.
It continues: “It is not shared with any other TICA member and is NOT a blacklist. It is your own private monitoring tool to keep an eye on your tenants.”
The email notification includes the personal information of the renter – their name, current address and mobile number – as well as the contact information of the secondary real estate agent who searched for them in the database.
In the the OAIC determination, TICA describes its main function as protecting “a landlord’s exposure to losses they may incur from defaulting tenants or a tenant who damages property”.
In response to the complaint, they argued that the virtual manager database was the member’s own internal database and that they did not use, access or share any information within it, meaning it was not subject to the same rules as formal tenancy databases.
TICA did not respond to questions from ABC News about its virtual manager database or the OAIC determination.
A spokesperson for the Real Estate Institute of Australia, the peak body representing real estate agents, said that the privacy of current and prospective tenants was paramount: “Agencies need to be diligent so that any tech tools are fully compliant and providing adequate consumer protection. That is our promise to our customers.”
The complaint
The tenant, given the alias ‘AHL’, lodged a complaint with the OAIC after they were informed of the virtual manager listing following an unsuccessful rental property application.
In 2011, the tenant was evicted from a Queensland property and placed on TICA’s main tenancy database, at which time the real estate manager opted to receive alerts on their movements through virtual manager.
The complainant was advised that they had been added to the main database due to unpaid rent, unpaid water usage charges, damage to property and costs incurred for cleaning, rubbish removal and change of locks, the OAIC determination read.
The listing on the main database was removed after three years, in accordance with Queensland’s Residential Tenancies and Rooming Accommodation (RTRA) Act.
But in 2018 – seven years after they were placed on TICA’s database – the tenant applied for a rental property with a different real estate agent, who searched the tenancy database, prompting an automatic notification to be sent through virtual manager to the first agent despite the original listing having been removed years earlier.
In response, the first real estate agent contacted the new agent and “advised them that the complainant had left the previous property damaged and with rent owing”, the determination read.
The tenant claimed that TICA had “improperly disclosed their personal information to the first real estate agent” and had “held information about the complainant in its database for longer than it needed, and therefore failed to take reasonable steps to destroy or de-identify the personal information it held”.
TICA denied that it interfered with the complainant’s privacy or breached the Privacy Act.
The Information Commissioner found TICA did not breach privacy guidelines by disclosing personal information to the real estate agent but rejected their claims that the virtual manager database was internal and found it was not exempt from the RTRA Act and the requirement to remove information after three years.
The commissioner ordered TICA to remove or de-identify any of AHL’s personal information held for more than three years. The OAIC order only applies to the complainant’s information, not other other personal information held by the service.
An OAIC spokesperson told ABC News that TICA has advised the commission “that personal information about the complainant is no longer held on the virtual manager database” and that it “also advised that it ‘is taking steps to upgrade its systems’ to ensure compliance with the Privacy Act”.
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