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Thursday, February 19, 2009

FOI dilemna over disclosure to the world at large

I was involved in a panel discussion in Sydney yesterday about the extent to which the motive, intent or identity of a Freedom of Information applicant is an irrelevant consideration in a decision to release a document, and whether there should be an automatic assumption that release of documents to the applicant is in effect "disclosure to the world at large." The discussion was prompted by
this NSW Appeal Panel decision along these lines last year. The Victorian Supreme Court's contrary view that the Appeal Panel declined to follow then was later upheld by the Victorian Court of Appeal in a unanimous decision handed down in three separate judgments with some differences in reasoning.

Both cases involved examination of what are relevant considerations in deciding whether disclosure of information to the applicant of information concerning the personal affairs of another person would be "unreasonable." They revolved around argument by the applicants that they had a particular interest in access to the documents for a specified purpose; that their interest in access was over and above any public right of access; and that they had no intention of disseminating the information widely.

As a result we have NSW authority that disclosure to the applicant is disclosure to the world
; and Victorian authority for the proposition that the proper test is to consider the particular circumstances of the case-a relevant factor being what is known about the applicant and intentions regarding further dissemination, and that an automatic assumption in every case that disclosure to the applicant is disclosure to the world at large is wrong in law.

Neither the NSW nor Victorian acts include a provision found in the Commonwealth (and Western Australian) act that motive or identity of the applicant is an irrelevant consideration.

In my view the NSW Appeal Panel attempt to distinguish the Victorian case by asserting differences between the objects of the acts and citing another unique provision of the NSW Act concerning the public interest was unconvincing. So was their observation that the scheme of the Act didn't contemplate the same document being released to one applicant but not to another. It emerged yesterday that another case involving the same issues is awaiting decision in the NSW Court of Appeal so we may have useful higher wisdom shortly.

Regardless of the interpretation of the courts there is an important policy question here.Identity, motive or intent of the applicant is irrelevant in the making of an application. But it can be a factor in some cases in making a judgment about whether disclosure is in the public interest or unreasonable- spelled out in various court decisions and in some detail in the NSW FOI Manual 2007[4.9].

Sure disclosure of documents about the workings of government or other documents relevant to the conduct of public functions that reveal nothing about the personal affairs of members of the public should be disclosed and one applicant's case for access will be the same as any other.That's why more information of this kind should be released to the world pro-actively and why information released to an applicant of potential interest to a broader audience should be brought to public attention via the web.

When it comes to personal affairs information, as the Victorian decisions point out, where the applicant is a journalist, media organisation, interest group, politician etc, a decision maker can safely assume disclosure to the applicant will be followed by wider dissemination.In those instances and where there is nothing to indicate what the applicant might do with the information, there is a need for careful consideration by the decision-maker of the nature of the information, the views of the person concerned, and the public interest in deciding whether disclosure would be unreasonable.

However where we know particular factors such as a familial relationship or a particular reason why this applicant has a case for access over and above others and it is unlikely the information will be disseminated further, there needs to be some recognition in the law for special circumstances.It's not a new issue -as mentioned here a Senate Committee in 1978 and the ALRC in 1995 both suggested doing something about it. No-one in Canberra has so far.The NSW Ombudsman's Review report includes a limited (view only- no copy) response to the problem [6.7].

The NSW ADT Appeal Panel case referred to above involved highly personal information about the victim of sexual assault and the applicant was the convicted perpetrator who wanted access for the purposes of further court proceedings. That application should be assessed on public not private interest grounds- that is whether the public interest in justice to the individual is served by disclosure to this applicant. There are precedents that establish relevant criteria.The argument doesn't appear to have been raised in the case.

On the other hand this hypothetical cited in the Victorian Supreme Court decision is one where an individual interest should prevail. We can safely assume release of the document is not disclosure to the world at large.I can think of plenty other examples.
“Suppose Julie is an eight year old girl, exhibiting some difficult behaviour. Her father, Stephen, thinks that Julie may have a psychiatric problem which may be genetically inherited from her maternal grandfather, who suffers from a serious psychiatric condition and attempted suicide several times. The grandfather cannot now be located. In an effort to help Julie, Stephen has sought access to the grandfather’s files, being the psychiatric records held by the Department of Human Services."

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