NSW ADT sticks to "disclosure to the world" but policy needs rethinking

The Appeal Panel of the NSW Administrative Decisions Tribunal in Cheney v Sydney West Area Health Service (2008) NSWADTAP 29 has decided that disclosure of documents to an applicant under the NSW Freedom of Information Act is "disclosure to the world", and that this prospect needs to be taken into account in determining whether disclosure of a document containing information about the personal affairs of a person to another would be unreasonable.

In this case the applicant, convicted of a crime, sought access to information to present to court in an application to overturn a conviction, and was prepared to provide an undertaking that the information would not be disclosed in any other circumstances. All documents but two had been released, and only parts of those were claimed exempt. Given the particular sensitivity of the information withheld about the victim of the crime, the Appeal Panel decided there had been no error of law in the finding that disclosure would be unreasonable.

The Appeal Panel discussed but declined to follow a contrary decision in the Supreme Court of Victoria in Marke v Victorian Police where the Court found that in considering whether disclosure of personal affairs information to another person was unreasonable, it was necessary to take into account all relevant circumstances, including the extent of likely further disclosure if the documents were released to this particular applicant. It was wrong to assume in every case that the documents would in effect come into the public domain. (I understand an appeal is pending in this case).

Some Australian FOI acts (eg the Federal and Western Australian acts), but not the NSW or Victorian acts, contain specific provisions to the effect that an applicant's reasons for seeking access are not relevant in any decision to grant access, and thus provide one of the justifications for the "disclosure to the world" consideration. Nevertheless, the issue of the applicant's motive or interest can crop up, for example in a rare case where disclosure is clearly relevant to an individual's right to justice and is strong enough to constitute a public interest in disclosure. This issue apparently was not argued or considered in the Cheney case. It would require more than an assertion, and a judgment about relevance, but a wrongful conviction is in the right sort of territory where this issue could be argued.

The ADT Appeal Panel reasons for refusing to follow the Victorian Supreme Court(17-20) were that the objects of the NSW Act refer to the "rights of the public"to access government information, not to the rights of an individual, and that the Act contains no reference to the motivation of the applicant or limitations on further disclosure:

"There is no provision, for example, for the agency or the Tribunal to place conditions on disclosure or to limit in any way the use that is made of documents that are disclosed pursuant to the FOI Act. If there were, then mechanisms would be needed for an agency to assess the credibility of any assurance in relation to the extent of disclosure. No such mechanisms are provided for, either by the agency or the Tribunal. In addition, if the approach of Hansen J in Marke v Victorian Police were followed the result would be that some applicants may be given access to documents while other applicants would not be granted access to the same documents. That situation leads to the conclusion that an applicant may need to give reasons for an FOI request and advise the agency of what he or she proposes to do with the documents. As we have said, there is no mechanism for an agency to assess the credibility of an applicant before reaching a decision as to whether or not disclosure would be unreasonable or whether the override discretion should be exercised. For those reasons, with respect, we do not consider that the views of Hansen J in Marke v Victorian Police should be followed by this Tribunal."(at 20).

In several earlier decisions NSW Tribunal members had taken a different approach. In Gilling v Hawkesbury Council (1999) NSWADT 94 Judicial Member Flemming said that in weighing whether disclosure was unreasonable there was a need to weigh public interest factors for and against disclosure. The applicant’s motive in seeking access to details of those who had complained to the Council about her was ‘to better understand the complaint and be able to respond to it. This is not an unreasonable purpose’ and disclosure was consistent with the objects of the Act. Deputy President Hennessy had followed a similar line of reasoning in another case involving the same parties.

Judicial Member Robinson in Humane Society v National Parks and Wildlife Services [2000] NSWADT 133 found that an application for access to the details (names and addresses) of holders of licences issued by the National Parks and Wildlife Service to cull flying foxes in order to protect their commercial orchards did not involve the unreasonable disclosure of information concerning their personal affairs. An important consideration was the motive of the applicant, who was planning to undertake research and observe the effects of such licences. As the motive went beyond mere curiosity and there was no evidence that the applicant intended to harass or otherwise interfere with the affairs of the licence holders, disclosure would not be unreasonable.

President O’Connor subsequently decided that the motive or interest of a particular applicant is an irrelevant consideration except perhaps where the interest in access is so strong that it could amount to a public interest in disclosure.

The question whether disclosure would result in the unreasonable disclosure of information concerning a person’s personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though not conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgement required in considering whether Clause 6 should be invoked.

In theory, at least, once access is given under FOI to one citizen any other citizen who makes the same request should have the same rights. But some authorities do recognise that a point may be reached where an applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right.

I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else’s personal records, and under which agencies can make varying calculuses as to the reasonableness of disclosure in that way."

This was precedent for a decision to refuse a father access to a document that would disclose to him the religion nominated in hospital by his estranged wife for their child, as his special relationship with the child was not relevant and his standing in the matter was no different from a complete stranger or a journalist.

In Victoria, in a long line of cases the Victorian Civil and Administrative Tribunal (and its predecessor) has taken the view that motive and purpose need to be considered, and may weigh in favour of disclosure to a particular applicant information which would not be disclosed to someone other than the applicant (see for example Birrell v Department of State Development [2001] VCAT 1258):"the balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance."

The Cheney decision puts things in NSW on a different footing, but it's yet another issue worthy of further examination by policy makers.

For example shouldn't there be some special consideration for access where the applicant has a unique relationship with the person concerned, such as a parent seeking access to documents concerning a child (as in the Uddin case), or a spouse or close relative who seeks access to information about a deceased person? Or for FOI acts to provide access to information that can only be used for particular purposes and not for others- there are precedents in other legislation in most jurisdictions.

Here is what the Australian Law Reform Commission had to say about this issue in its 1995 "Open Government" report:

"In 1987 the Senate Standing Committee on Legal and Constitutional Affairs recommended that the AAT and the courts should be able to release documents that would otherwise be exempt under s 41 or s 43(1)(c)(i) subject to undertakings by the applicant as to how the documents will be used. The Review does not support this recommendation. It would be difficult, particularly for the AAT, to enforce such conditions and, in any case, enforcement action would come too late. Any damage the conditions were designed to guard against would already have been done. In addition, if it was considered appropriate to allow the AAT and the courts to release documents subject to conditions, it would be logical also to allow agencies to do so. The difficulty of enforcing conditions imposed by an agency would be even greater than in respect of the AAT and the courts.

The Review considers that amending the Act to permit an agency to take into account a special relationship between the applicant and the third party when determining whether the public interest in disclosure outweighs any interference with the third party's personal privacy is a preferable option. Such an amendment would not mean that the existence of a special relationship would automatically preclude the document from being exempt. It will merely be a relevant factor in determining whether the information should be withheld. There will be circumstances, for example a situation involving domestic violence, where the special relationship will contribute to the conclusion that disclosure is not, on balance, in the public interest.[24] The important thing is that the relationship will be a factor that can properly be taken into account. By 'special relationship' the Review means a close relationship, generally a family relationship. It does not mean any situation in which the requested information is of special significance to the applicant, as opposed to the general public. The FOI Commissioner's guidelines should explain this and provide examples. The guidelines should also make clear, however, that in weighing the public interest in the applicant being given access to the information, the decision maker should take into account the fact that there is nothing in the legislation to prevent a successful applicant from distributing the information more widely."

Another of those recommendations not acted on since the report was completed in 1995. NSW and states other than Victoria should also have a think about this.