These two articles on 23 and 24 August and an editorial (second story) in the Sydney Morning Herald detail unsuccessful attempts to obtain under FOI documents concerning fines issued to restaurants by the City of Sydney Council for failure to observe food hygiene standards.
These articles follow earlier publicity about the paper’s FOI application and attracted comment from readers overseas who said that this type of information is routinely available in cities in the UK, the US, Canada and elsewhere.
The article on 24 August correctly quoted me to the effect that any claim that documents couldn’t be released because of privacy legislation is incorrect. Anna Johnston of the Australian Privacy Foundation agreed: the NSW Privacy and Personal Information Protection Act specifically provides that nothing in the Act impacts in any way on an agency’s obligations under the FOI Act.
The FOI Act contains its own mechanism to balance privacy and the public right to know with an exemption designed to protect information concerning personal affairs where disclosure would be unreasonable.
I haven’t seen the disputed documents but it would be surprising if the names of individuals fined would be information concerning personal affairs – the names would simply reveal who had been issued with a fine for failure to observe food hygiene standards. This isn’t likely to be information about matters of private concern.
Apparently the refusal was also based on the exemption that covers information concerning business and commercial affairs where disclosure would have an unreasonable adverse effect on those affairs. Without seeing the documents its difficult to make a judgement about this claim but a couple of points: is the fact that a fine was issued to the proprietor of a business information about “business and commercial affairs” or is it simply a record that the organisation was found to have failed to comply with legal requirements in handling food for public consumption? In other words is it about business affairs or regulatory compliance?
Despite this, even if it did constitute business affairs information, weighing the unreasonable adverse effect of disclosure requires consideration of any public interest to be advanced by release of the information. There is a strong public interest in maintenance of public health and the public right to know where restaurants have failed to comply with standards.
In an earlier comment on this issue we suggested that food authorities and all councils involved in conducting inspections should get together to promote food hygiene standards through pro active disclosure of information along the lines of the many “Scores on doors” projects adopted elsewhere.
This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. Information contained on this site is general in nature and does not constitute legal advice. Follow Peter Timmins on Twitter: @foiguru Follow the open government cause through the Australian Open Government Partnership Network. www.opengovernment.org.au and @opengovau
I do not believe that there is a public interest test attached to the use of clause 7 of Schedule 1 (business affairs). Although there is obviously a strong public interest in the hygiene standards of restaurants, I don't think that the FOI Officer was required to consider this when determining that there was likely to be an unreasonable adverse effect on the business concerned. I would love to hear from anyone with an alternative view of the provisions of clause 7.
ReplyDeleteThere are many precedents that indicate that one of the factors in judging "unreasonable" adverse effects is whether disclosure of the documents in question is in the public interest. I can give you details of the cases if you wish.
ReplyDeletePeter